Kashi Nath Pandey And Others vs Ist A.D.J. Varanasi And Others
2023 Latest Caselaw 7433 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 9
 

 
Case :- WRIT - C No. - 34285 of 1995
 
Petitioner :- Kashi Nath Pandey And Others
 
Respondent :- Ist A.D.J. Varanasi And Others
 
Counsel for Petitioner :- Sankatha Rai
 
Counsel for Respondent :- C.S.C.,A.K.Singh,S.N.Singh
 
with
 
Case :- WRIT - C No. - 15000 of 1999
 
Petitioner :- Kashi Nath Pandey And Others
 
Respondent :- Ix Addl.Judge Varanasi And Others
 
Counsel for Petitioner :- S.Rai
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.

[Civil Misc. Substitution Application No. 186880 of 2015]

Heard.

It is contended that petitioner no. 2 Vishambhar Dayal Pandey and petitioner no. 3 Parmanand Pandey had died on 12.03.2008 and 30.03.2013, respectively leaving behind their legal heirs as given in paragraph no. 7 of the affidavit to the application.

In view of the said facts, the substitution application stands allowed.

Name of petitioner nos. 2 and 3 be struck off from the array of parties and the name of legal heirs given in paragraph no. 7 of the affidavit to the substitution application be substituted in the array of parties.

Office is directed to carry out necessary substitution in the array of parties within a week.

[Civil Misc. Amendment Application No. 01 of 2023]

Heard.

Amendment application is allowed.

Learned counsel for the petitioner is permitted to carry out necessary amendment during the course of the day.

[Order on Petition]

1. Heard Sri Ashok Kumar Singh, Advocate alongwith Sri Vinod Kumar Rai, Advcoate for petitioners and Sri A.K. Singh, learned counsel for the private respondents.

2. These two connected writ petitions arise out of the order passed by the Trial Court as well as the Appellate Court on 13.01.1993, 08.02.1996 and 16.08.1995 and also the order dated 03.12.1998.

3. Facts, in brief, are that plaintiff respondent no. 3 Rama Shankar filed a suit against the defendant petitioners for cancellation of sale deed dated 24.04.1976. The defendant petitioners were not appearing in the Court after filing of the written statement, as such, on 08.01.1993 the Trial Court passed an order under Order 17 Rule 3 CPC fixing 13.01.1993 for the judgment. The Trial Court had observed that the case was fixed for defendant witnesses on 6/5/91, 23/5/91, 6/7/91, 8/7/91, 15/7/91, 1/8/91, 13/8/91, 17/8/91, 4/9/91, 17/9/91, 20/4/91, 4/10/91, 15/10/91, 1/11/91, 13/11/91, 4/12/91, 3/1/92, 5/2/92, 17/2/92, 16/3/92, 7/4/92, 12/4/92, 20/7/92, 20/7/92, 19/8/92, 19/11/92 and 21/12/92. The matter was thereafter fixed for 19.08.1992 providing last opportunity for giving the evidence. An application was moved on behalf of defendant petitioners for adjourning the matter and case was posted for 21.12.1992. On the said date again an adjournment application was moved and the case was fixed for 08.01.1993. On the said date again an application for adjournment was moved by the defendant petitioners and the Trial Court fixed for 13.01.1993. The Trial Court on 13.01.1993 decreed the suit and cancelled the sale deed dated 24.04.1976.

4. Aggrieved by the said order, a restoration application under Order 9 Rule 13 CPC was filed by the defendant petitioners for recalling the order dated 13.01.1993. An objection was filed by the plaintiff respondent. During the pendency of the recall application a regular appeal under Section 96 alongwith delay condonation application was also preferred by the defendant petitioners before the District Judge, Varanasi which was registered as Misc. Case No. 174 of 1993. The said application was rejected vide order dated 16.08.1995. Against the said order no second appeal was preferred and instead a Civil Misc. Writ Petition No. 34285 of 1995 was filed. The application filed under Order 9 Rule 13 CPC was rejected vide order dated 08.02.1996, against which a miscellaneous appeal was filed which was also rejected vide order dated 03.12.1998, which has been challenged in Civil Misc. Writ Petition No. 15000 of 1999.

5. Learned counsel for the petitioners submits that the case of the petitioners falls under Order 17 Rule 2 CPC and not under Order 17 Rule 3 CPC as the adjournment application moved on 08.01.1993 was not entertained by the Court concerned and, thus, it would amount that the parties had failed to appear on the date fixed. He then contended that the Court below should have taken a lenient view in considering the application and should have recalled the ex parte order so as to allow the defendant petitioners to file their evidence before the Court concerned. He next contended that the Section 5 application which was filed along with regular appeal was rejected by the lower Appellate Court and the appeal was never heard nor any regular number was allotted.

6. He further contends that in the matter of Order 9 Rule 13 CPC and while considering the application under Section 5 of the Limitation Act, the Court should be liberal. Reliance has been placed upon a Full Bench judgment of this Court in case of M.S. Khalsa Vs. Chiranji Lal & others, AIR 1976 Allahabad 290, Lacchi Ram Vs. Sant Ram Mawai & others, 2015 (128) RD 261 and a decision of Apex Court in case of G.P. Srivastava Vs. R.K. Raizada & others, AIR 2000 Supreme Court 1221.

7. Opposing the writ petitions, Sri A.K. Singh, learned counsel for the plaintiff respondent, submitted that once the application under Section 5 of the Limitation Act was rejected by the lower Appellate Court, the appeal also goes as it is only a consequential order and against the dismissal of an appeal, second appeal under Section 100 CPC would lie and not the writ petition. He then contended that once the appeal was dismissed by the lower Appellate Court on 16.08.1995 the consideration of application under Order 9 Rule 13 CPC does not arise as the said order was passed subsequently on 08.02.1996 and appeal against that order was filed on 03.12.1998.

8. According to him the Court below had rightly rejected the application filed under Order 9 Rule 13 on the ground that the regular appeal has been dismissed and miscellaneous proceedings cannot go on. Reliance has been placed upon a decision of coordinate Bench of this Court in case of Rajendrapal Singh Vs. ADJ, Ghaziabad & another, Matters Under Article 227 No. 7365 of 2015, decided on 16.12.2015. He lastly contended that against the dismissal of an appeal, writ petition under Article 226/227 would not lie and second appeal under Section 100 CPC is maintainable.

9. I have heard the respective counsel and perused the material on record.

10. The short point involved in these writ petitions are as to whether the Court below rightly proceeded under Order 17 Rule 3 CPC after the defendant petitioners failed to produce the evidence and secondly whether a writ petition is maintainable once the regular appeal has been dismissed pursuant to the rejection of Section 5 application.

11. It is not in dispute to either of the parties that after the evidence of plaintiff was closed the defendant petitioners were granted sufficient time to adduce evidence. The DW-1 was examined on 05.02.1992. Thereafter, several dates were fixed but no other evidence was adduced by the defendant's side. The Trial Court on 08.01.1993 after recording the fact that number of dates have been fixed and only applications are moved on behalf of the defendant for adjourning the matter, the suit is not proceeding and fixed for 13.01.1993 for the judgment. On 13.01.1993 the suit of the plaintiff was decreed and sale deed dated 24.04.1976 was cancelled. Against the said order no regular appeal was filed by the defendant but application under Order 9 Rule 13 CPC was preferred, however, during the pendency of the application an appeal was filed along with Section 5 application.

12. The application for condonation of delay was dismissed on 16.08.1995. Once the application for condoning the delay was dismissed by the lower Appellate Court, the appeal stood dismissed. Against the order of dismissal appeal under Section 100 CPC is maintainable and not the writ petition.

13. Reliance placed upon the decision of Rajendrapal Singh (Supra) by the respondent counsel also confirms the law settled by the Apex Court wherein it has been held that dismissal of Section 5 application would also mean dismissal of appeal and petition under Article 227 will not be maintainable.

14. Coming to Order 17 Rule 3 CPC, I find that the defendants were well aware of the dates fixed by the Trial Court and were not appearing and had failed to produce the evidence and on 08.01.1993 adjournment application was again moved which the Court refused to entertain and fixed for proceeding in the matter under Order 17 Rule 3 CPC on 13.01.1993.

15. Rule 3 of Order 17 provides as under;

"3. Court may Proceed Notwithstanding Either Party Fails to Produce Evidence, etc.:Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default,-

(a) if the parties are present, proceed to decide the suit forthwith, or

(b) if the parties are, or any of them is, absent, proceed under rule 2."

16. From the reading of Rule 3 of Order 17, it is clear that where any party to a suit who has been granted time fails to produce evidence or to cause the attendance of his witnesses or to perform any other necessary act to further progress of suit for which time has been allowed, the Court may notwithstanding such default proceed to decide the suit.

17. The argument raised from the petitioners' side is totally misconceived that the case of the petitioners is covered under Order 17 Rule 2 CPC and not under Order 17 Rule 3 CPC. Petitioners had been constantly moving adjournment applications before the Court below and it was on 08.01.1993 that the Trial Court after recording the dates on which the adjournment applications were moved and the matter was adjourned for giving time to the defendant petitioner to adduce evidence and they having failed to do so proceeded to fix the date for judgment.

18. Considering the aforesaid facts and circumstances of the case, I find that once the appeal filed by the defendant petitioners against the judgment of Trial Court dated 13.01.1993 was dismissed on 16.08.1995, the only remedy left to the petitioners was to file an appeal under Section 100 CPC and the present writ petitions filed challenging the various orders passed by the Trial Court as well as the Appellate Court under Article 226/227 of the Constitution of India are not maintainable.

19. Writ petitions fail and are hereby dismissed.

Order Date :- 15.3.2023

Shekhar