Allahabad High Court
Hesham Ahmad Alias Ehtesham And 6 Others vs Pramod Kumar Singh And 3 Others on 8 May, 2025
Author: Abdul Moin
Bench: Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:27264
Court No. - 5
Case :- FIRST APPEAL FROM ORDER No. - 188 of 2025
Appellant :- Hesham Ahmad Alias Ehtesham And 6 Others
Respondent :- Pramod Kumar Singh And 3 Others
Counsel for Appellant :- Mohd. Ali
Counsel for Respondent :- Amol Kumar Srivastava,Krishana Kumar Singh,Shivang Dwivedi
Hon'ble Abdul Moin,J.
1. Heard Sri Mohd. Ali, learned counsel for the appellants, Sri Amol Kumar Srivastava, learned counsel for the respondents no. 1 & 2 and Sri K.K.Singh, learned counsel for the respondent no. 3. The respondent no. 4 is a proforma party.
2. With the consent of learned counsel appearing on behalf of the contesting parties, the instant appeal is being finally decided.
3. By means of the instant first appeal from order, the appellant seeks to challenge the judgment and decree dated 18.02.2025 passed by the learned Additional District Judge, Court No. 6, Balrampur in Civil Appeal No. 02 of 2023 Inre; Pramod Kumar Singh and anr Vs. Heshma @ Ehtesham and Ors.
4. The sheet anchor of the argument of the learned counsel for the appellant is that earlier the Nagar Palika had approached this Court by filing Matter Under Article 227 No. 21634 of 2017 Inre; Nagar Palika Parishad and Ors Vs. A.D.J Court No. 1, Balrampur and Ors praying for setting aside the orders dated 02.08.2017 & 04.10.2016 passed by the learned Additional District Judge, Balrampur & learned Civil Judge (Senior Division), Balrampur respectively in which the appellant herein was the respondents in Original Suit No. 96 of 2012.
5. This Court vide judgment and order dated 14.10.2022, a copy of which is annexure 10 to the appeal set aside the orders impugned dated 04.10.2016 & 02.08.2017 and remanded back the matter to the learned trial Court for deciding the issue no. 7 afresh after hearing all the parties concerned.
6. The issue no. 7 had been dealt with in paragraph 24 of the judgment of this Court which was as to whether the wall in dispute was raised by the private respondents in the suit and that wall was in existence over the land vested in the Nagar Palika so as to attract the provisions of Order 7 Rule 11 (d) of the CPC and Section 326 of the Uttar Pradesh Municipalities Act, 1916 (hereinafter referred to as ?Act, 1916?).
7. Incidentally, Section 326 of the Act, 1916 provides for a two months notice to be given to the Nagar Palika.
8. It is contended that the aforesaid judgment has attained finality.
9. In pursuance thereof, the learned trial Court vide judgment and order dated 22.12.2022, a copy of which is part of the appeal, recorded the finding with respect to issue no. 7 and rejected the plaint that had been filed by the respondents no. 1 & 2 herein under Order 7 Rule 11 (d) of the CPC.
10. Being aggrieved, the respondents herein filed Civil Appeal No. 02 of 2023 Inre; Pramod Kumar Singh and Ors Vs. Heshma @ Ehtesham and Ors.
11. It is contended that in paragraph 21 of its judgment, the learned appellate Court has observed that merely because of non giving of the notice it cannot be construed that that the trial could not proceed on merits and has allowed the appeal.
12. Argument of the learned counsel for the appellant is that a notice under Section 326 of the Act, 1916 has been held to be mandatory by a Full Bench of this Court in the case Hazi Ahamad Raza Vs. Municipal Board, Allahabad-AIR 1952 All 711 and consequently, the finding given by the learned appellate Court that merely because a notice was not given would not vitiate the trial is per se against the law laid down by the Full Bench judgment of this Court in the case of Hazi Ahamad Raza (supra) and thus the appellate order merits to be set aside on this ground alone.
13. On the other hand, Sri Amol Kumar Srivastava, learned counsel for the respondent no. 2 has indicated that the land does not even belong to the Nagar Palika and consequently, there was no occasion for a notice to have been issued to the Nagar Palika which aspect of the matter has been considered in the earlier part of the judgment as passed by the appellate Court. He further argues that even the land over which the kiosk has been established by the appellant herein also did not belong to Nagar Palika rather the land belongs to the National Highway which aspect of the matter has been considered by the appellate Court and thus, there is no error in the order passed by the appellate Court.
14. Having heard the learned counsel appearing on behalf of the contesting parties and perused the records it emerges that this Court vide its judgment and order dated 14.10.2022 had set aside the orders passed by the learned trial Court and the appellate Court dated 04.10.2016 & 02.08.2017 and had remanded the matter to the learned trial Court for deciding issue no. 7 which was as to whether the wall in dispute raised by the private respondents in the suit was in existence over the land vested in Nagar Palika so as to attract the provisions of Order 7 Rule 11 (d) of the CPC and Section 326 of the Act, 1916.
15. The learned trial Court vide its order dated 22.12.2022 has rejected the claim as filed by the respondents no. 1 & 2 herein under Order 7 Rule 11 (d) of the CPC.
16. Being aggrieved, the appellants filed an appeal and the learned appellate Court vide impugned judgment and order dated 18.02.2025 has observed in one part of the judgment that the land belongs to the respondents no. 1 & 2 herein but in paragraph 21of its judgment, it has observed that merely because a notice was not given that would not result in the trial not proceeding on merits.
17. The Full Bench of this Court in the case of Haji Ahamad Raza (supra) has held that the crucial point for determination is whether the object of the suit would be "defeated" by the giving of the notice or the postponement of the commencement of the suit and if the answer is, in the affirmative then no notice was necessary, but if it is in the negative then the suit must fail for want of notice.
18. Interesting, the learned appellate Court in one part of the order has held that the land does not belong to the Nagar Palika rather it belongs to the private respondents herein but has ultimately held in its judgment that merely because a notice was not given that would not vitiate the trial meaning thereby that the learned appellate Court was itself not very sure as to whether a notice was in fact required or not althoug a notice would be required in terms of the Full Bench judgment of this Court in the case of Haji Ahamad Raza (supra) in case the land belongs to the Nagar Palika.
19. Keeping in view the aforesaid discussion, it is apparent that the observations made by the learned appellate Court are clearly not countenanced in the eyes of law.
20. Accordingly, the appeal is allowed. The judgment and order dated 18.02.2025 as passed by the learned appellate Court is set aside. The matter is remitted to the learned appellate Court to decide the appeal a fresh keeping in view the observations made above as well as Full Bench judgment of this Court in the case of Haji Ahamad Raza (supra).
21. As the suit had been filed in the year 2012 as such, the learned appellate Court shall endeavour to decide the appeal within a period of six months from the date a certified copy of this order is placed on record without granting unnecessary adjournments.
Order Date :- 8.5.2025
Pachhere/-
