Allahabad High Court
Rajendra Kumar Sahu vs Sher Mohammad And 11 Others on 5 October, 2023
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:192260
Court No. - 1
Case :- MATTERS UNDER ARTICLE 227 No. - 6821 of 2023
Petitioner :- Rajendra Kumar Sahu
Respondent :- Sher Mohammad And 11 Others
Counsel for Petitioner :- Rajiv Sharma
Counsel for Respondent :- C.S.C.,Azad Rai
Hon'ble Jayant Banerji,J.
1. Heard Shri Rajiv Sharma, learned counsel for the petitioner and learned Standing Counsel appearing for respondent No.11. No one appears for respondent No.10, Gram Panchayat.
2. This petition has been filed seeking the following relief:
?(i) Issue a order or direction setting aside the impugned order dated 15.4.2023 passed by learned Additional District and Sessions Judge, Court No.1, Kaushambi (Annexure No.7 to the writ petition) and the judgment, order and decree dated 20.1.2021 and 3.2.2021 passed by learned Civil Judge (Junior Division), Kaushambi passed in Original Suit No.537 of 2008 (Sher Mohammad and 08 others Versus Gaon Panchayat Kamalpur and 03 others).
(ii) issue a order or direction commanding the Respondent Nos. 1 to 9 not to sell, not to stop the villagers of the village Kamalpur and drainage over the same and using chak marg (plot No. 550 village Kamalpur).?
3. This petition has been filed by the defendant No. 4 in Original Suit No. 537 of 2008 (Sher Mohammad and 08 others Versus Gaon Panchayat Kamalpur and 03 others) filed in the court of Civil Judge (Junior Division), Kaushambi. In the aforesaid suit, a decree of permanent injunction was sought, restraining the defendants from making construction of road over the suit property. By means of a judgment and order dated 4.2.2021, the suit was decreed after considering the written statement filed by the State respondents, framing of issues and evidence on record.
4. It appears that the petitioner, despite being served with summons, did not contest the aforesaid suit. The petitioner then filed an appeal against the aforesaid judgment and order dated 4.2.2021 along with an application under Section 5 of the Limitation Act. As the appeal was filed beyond the time limited for filing the appeal, the appeal was registered as a Misc. Civil Case No. 18/74/2022. By the order impugned dated 15.4.2023, the petitioner's application No. 7C, filed under Section 5 of the Limitation Act, was dismissed.
5. The contention of the learned counsel for the petitioner is that the petitioner is the Block Pramukh of the area, under which the suit property falls. It is stated that a connecting road was made over the suit property out of the funds received from the government. It is further stated that the petitioner has a right to file the appeal as he is an interested person, in order to safeguard the interests of the villagers.
6. A perusal of the impugned order reveals that the appellate court found that the defendant No.4 was sufficiently served with the summons, who also appeared in the court but neither did he filed any written statement nor participated in the proceedings of the suit, as a result of which, the suit was directed to proceed ex-parte against defendant No. 4, and the suit was ultimately decreed on 20.1.2021.
7. The appellate court noticed the arguments made on behalf of the petitioner that the petitioner had heard rumors on 30.8.2022 regarding the judgment and order dated 20.1.2021, whereafter the appeal along with the Section 5 application, was presented. The appellate court noticed that the appeal was filed after one year, six months, eighteen days delay, and no sufficient explanation had been offered by the appellant as to the reason for the delay in filing the appeal. The contention of the appellant that he heard rumors in the village on 30.8.2022 regarding the judgment, cannot be accepted to be correct. Accordingly, the application was rejected.
8. Learned counsel for the petitioner has not been able to demonstrate any error or illegality in the findings recorded by the appellate court. It remains unrebutted that the petitioner was duly served with the summons in the suit and had put in appearance. Then, his non-participation therein, and his explanation offered for not filing the appeal within time does not appear to be bonafide.
9. Under the circumstances, interference in the order impugned dated 15.04.2023 is declined, and this petition is dismissed.
Order Date :- 5.10.2023
K.K.Tiwari
(Jayant Banerji, J.)
