Naimun Nisha vs State Of U.P Thru Prin Secy Revenue Lko ...
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Allahabad High Court

Naimun Nisha vs State Of U.P Thru Prin Secy Revenue Lko ... on 23 May, 2024

Author: Alok Mathur

Bench: Alok Mathur

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2024:AHC-LKO:39356
 
Court No. - 7
 

 
Case :- MATTERS UNDER ARTICLE 227 No. - 857 of 2017
 

 
Petitioner :- Naimun Nisha
 
Respondent :- State Of U.P Thru Prin Secy Revenue Lko And Anr
 
Counsel for Petitioner :- Amar Nath Dubey
 
Counsel for Respondent :- C.S.C,Pramod Kumar Pandey,Satish K Tripathi
 

 
Hon'ble Alok Mathur,J.
 

1.Heard Sri Amar Nath Dubey, learned counsel appearing for the petitioner, learned Standing counsel on behalf of respondent No.1.

2. No one has appeared for respondent No.s 2 and 3.

3. By means of the present petition under Article 227 of the Constitution the petitioner has challenged order dated 24.5.2016 passed by Additional Civil Judge (Junior Division), Court No.18, Pratapgarh as well as order dated 27.10.2016 passed by Additional District Judge, Court Room No.1, Pratapgarh in Civil Revision No.29 of 2016 (Naimun Nisha and another Vs. Zubair Ali).

4. It has been submitted that the land in dispute having gata No.274 are about 3-19-1 which was bhumidhari land of father of the petitioner namely Firazuddin who was in continuous possession of the said land in his lifetime. The sister of Firazuddin Smt. Zaimul Nisha alias Zaimul who was married with Kalu Mistri and Kalu Mistri had a brother namely Kifayatulla who had one son, namely Zubair Ali who is opposite party No.2 in the present petition.

5. Brief facts leading to the present dispute is father of the petitioner, namely Firazuddin executed a registered will deed in favour of the petitioner (daughter) with regard to his movable and immovable properties. Firazuddin had sold the disputed property to Kalu Khan husband of Smt. Zaimul Nisha. It is the said sale deed which was subject matter of the suit filed by Firazuddin against Kalu Khan for cancellation of the sale deed in the court of Civil Judge (J.D.) Sadar, Pratapgarh which was numbered as Suit No.116 of 2007. The said suit was decided ex-parte on 13.5.2015 and it is against the said ex-parte decision dated13.5.2015 that an application under Order 9 Rule 13 was preferred by Zubair Ali, opposite party No.2. Jubair Ali had submitted before the trial court that he was a necessary party in the suit proceeding and despite being necessary party he was deliberately not impleaded and on the other hand, there was no service to the defendant in the suit proceeding and, therefore, his application under Order 9 Rule 13 deserves to be allowed. The objections raised by the petitioner were rejected and the trial court after examining the order-sheet and was of the view that service on defendants was not sufficient and consequently proceeded to allow the application under Order 9 Rule 13 CPC.

6. The petitioner being aggrieved of the order of the Additional Civil Judge (Junior Division), Pratapgarh preferred a revision before District Judge, Pratapgarh taking specific pleading that opposite party No.2 has not moved application for impleadment nor was impleaded as defendant in the suit and consequently did not have any locus to move the application under Order 9 Rule 13. It was stated that aforesaid application was not maintainable and consequently deserves to be rejected. The arguments of the petitioner did not find favour with the revisional court who proceeded to affirm the order of the trial court dated 24.5.2016 and the petitioner has assailed the order 24.5.2016 as well as order 27.10.2016 in the present petition.

7. Learned counsel for the petitioner has urged that Zubair Ali - opposite party No. 2 was a stranger to the suit proceedings and unless and until he was not impleaded in the suit he could not have maintained any application under Order 9 Rule 13 and consequently the order of the trial court as well as the appellate court are infirm and deserve interference of this Court.

8. I have heard learned counsel for the petitioner, learned Standing counsel and perused the order.

9. The only question which falls for consideration before this Court is as to whether a person who is not a defendant or party in the suit can maintain an application under Order 9 Rule 13 CPC ? Supreme court in the case of Ramji Gupta VS. Gopi Krishan Agarwal, 2013 All. C.J. 1303 had an occasion to consider this aspect of the matter and it has clearly been held that an application under Order 9 Rule 13 CPC cannot be maintained by a person who was not initially a party to the suit proceeding. The relevant portion of the judgment is quoted below:-

"20. In view of the above, the legal issues involved herein, can be summarised as under:-

(i) An application under Order IX Rule 13 CPC cannot be filed by a person who was not initially a party to the proceedings;

(ii) Inherent powers under Section 151 CPC can be exercised by the Court to redress only such a grievance, for which no remedy is provided for under the CPC;

(iii) In the event that an order has been obtained from the Court by playing fraud upon it, it is always open to the Court to recall the said order on the application of the person aggrieved, and such power can also be exercised by the appellate court;

(iv) Where the fraud has been committed upon a party, the court cannot investigate such a factual issue, and in such an eventuality, a party has the right to get the said judgment or order set aside, by filing an independent suit.

(v) A person aggrieved may maintain an application before the Land Acquisition Collector for reference under Section 18 or 30 of the Act, 1894, but cannot make an application for impleadment or apportionment before the Reference Court.

10. A coordinate Bench of this Court also considered this aspect of the matter in the case of Ishaq Khan and others Vs. State of U.P. and others, 2014 All. C.J. 392, the relevant para of which is quoted as under:-

"4. So far as the first contention of Sri Saxena that an application under Order 9 Rule 13 CPC cannot be filed by a person who was not a party to the suit appears to be correct but at the same time such a person can always file and appeal provided he/she falls within the definition of an aggrieved person. The defendant can file an application under Oder IX Rule 13 in the Suit whereas an appeal can be filed by any aggrieved person. This is the distinction in the scope of these two remedies.

6. Thus, whether the respondents are aggrieved persons or not is still open for consideration by the appellate court which is yet to hear the appeal. In the circumstances, the said opportunity to the petitioner is still available to raise this issue as to whether the respondent No.s 4 and 5 fall within the definition of aggrieved person or not.

Consequently, I do not find any reason to entertain this writ petition. The writ petition is dismissed."

11. A perusal of the aforesaid judgments of the Apex Court as well as this Court leave no doubt for any debate that a person who is not a party to the suit proceedings cannot move application under Order 9 Rule 13 CPC and consequently opposite party No.2 who was not a party in the suit could not have filed application under Order 9 Rule 13 and hence the order dated 24.5.2016 passed by Additional Civil Judge (Junior Division), Court No.18, Pratapgarh as well as order dated 27.10.2016 passed by Additional District Judge, Court Room No.1, Pratapgarh in Civil Revision No.29 of 2016 (Naimun Nisha and another Vs. Zubail Ali) are arbitrary and according set aside.

12. The writ petition is allowed.

(Alok Mathur, J.)

Order Date :- 23.5.2024

RKM.