Alladiya Alladdin And Anr vs Smt. Banu And Ors
2021 Latest Caselaw 8088 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

..

S.B. Civil Second Appeal No. 436/2005

Alladiya Alladdin & Anr.

                                                                  ----Appellants
                                   Versus
Smt. Banu &. Ors
                                                                ----Respondents


For Appellant(s)         :    Mr. Moti Singh.
For Respondent(s)        :    Mr. RDSS Kharlia.


     HON'BLE MR. JUSTICE DEVENDRA KACHHAWAHA

                                   Order

Reserved on : 01/03/2021
Pronounced on : 24/03/2021

The instant second appeal has been filed under Section 100

of the Code of Civil Procedure on behalf of the appellants, who

were the defendants before the Trial Court against the judgment

and order dated 18.08.2005 vide which, the Appellate Court had

dismissed the appeal (No. 7/2001) preferred on behalf of the

defendants being aggrieved of the judgment and order dated

24.02.2001 passed by the Trial Court by which, the Trial Court

had allowed and decreed the suit, seeking declaration and

injunction, in favour of the plaintiffs (respondents herein).

On perusal of the record, this Court finds that this appeal

was admitted for consideration, while formulating the substantial

questions of law, on 13.04.2006. Interim order to the effect of

maintaining status quo with respect to the suit property was also

passed in favour of the appellants which was confirmed by this

Court vide order dated 10.05.2006.

On 06.12.2017, the present second appeal was dismissed

for want of prosecution. However, the same has been restored

by this Court vide order dated 29.07.2019 by allowing S.B. Civil

Restoration Application No. 35/2018.

This Court also finds that in the interregnum period, i.e.,

from 06.12.2017 to 29.07.2019, the respondents/plaintiffs had

approached the concerned Tehsildar on 06.03.2018 and prayed

for alteration in the revenue record by saying that the second

appeal filed by the appellants had been dismissed by the High

Court and, therefore, there is no hitch in initiating the

proceedings for altering the revenue entries; and the concerned

Tehsildar vide order dated 24.08.2018 had proceeded to pass

final order in the matter, while proceeding ex-parte against the

appellants herein.

It is noticed that on coming to know about alteration in the

revenue entries by the concerned Tehsildar on the prayer of the

respondents, learned counsel for the appellants has moved an

application under Section 151 CPC, seeking continuance of the

orders passed by this Court on 13.04.2006 and 10.05.2006.

Another application has also been preferred on behalf of the

appellants under Section 141 CPC for restitution of revenue

entries of the suit land, which were changed by the respondents

on 24.08.2018.

This Court finds that an application has also been preferred

on behalf of the respondents under Section 151 CPC, seeking

recalling of the order dated 29.07.2019 passed in S.B. Civil

Restoration Application No. 35/2018.

In support of the application filed by the appellants under

Section 151 CPC and another application filed under Section 141

CPC, learned counsel for the appellants stated that the present

second appeal was admitted, after hearing both the sides and on

10.05.2006, stay was confirmed, also after hearing both the

sides. Learned counsel further urges that due to illness of counsel

for the appellants, she could not appear before the Hon'ble Court

and as per her instructions, her junior was also not timely

appeared before the Court and the second appeal was dismissed

for want of prosecution on 06.12.2017 and in the garb of that

order, without disclosing the actual position, application was

submitted before the concerned Tehsildar (Land Records), Hurda,

District Bhilwara on 18.12.2017, just few days after dismissal of

the second appeal, by concealing the fact that the appeal was not

decided on merits but was dismissed for want of prosecution. On

the basis of misleading of facts on behalf of the respondents,

amendment was carried out by the concerned Tehsildar in the

revenue records. On the basis of the application for restoration of

the second appeal which is supported by the affidavit, after

hearing both the sides on merits, the second appeal was restored

on 29.07.2019. As the entries in the revenue records were

changed in between period, therefore, one application under

Section 151 CPC with the prayer that the effect and operation of

the order dated 13.04.2006 and 10.05.2006 may kindly be

continued till the final disposal of the appeal was preferred on

behalf of the appellants on 14.08.2019. Another application

under Section 141 CPC was also filed on behalf of the appellants

on the very same day, i.e., 14.08.2019 with the prayer that the

changes in the Jamabandi of Khata No. 280 (khasra No. 686,

689, 690, 691, 698 of Village Hurda Magra Tehsil Hurda, District

Bhilwara by which, name of Vahidan S/o Kamru Musalman has

been deleted and the name of Mohammad S/o Abdullash has

been entered, further through succession mutation 2935 dated

24.08.2018, the entry of legal heirs of the Mohammad may

kindly be declared illegal and arbitrary and restored the original

position of the revenue entries as existed on 13.04.2006 to

01.02.2018. Reply to the application filed under Section 151 CPC

has been filed by the respondents with the affidavit of Abdul

Sattar in which, he has denied the facts as mentioned in the

application and requested for dismissal of the application.

Learned counsel for the appellants further urges that after filing

of the above said applications on behalf of the appellants, one

application under Section 151 CPC, seeking recalling of the

restoration order dated 29.07.2019 was filed on behalf of the

respondents on 16.09.2019. In this application, it is for the first

time, it has been averred that the application for restoration of

the second appeal was not supported by any medical documents

regarding illness of the learned counsel. It has also been

mentioned in the application that on the very day, i.e.,

06.12.2017, learned counsel for the appellants appeared before

some other Benchs and before the Central Administrative

Tribunal, Jodhpur Bench, Jodhpur. Learned counsel also urges

that previously, such objections were not raised by the

respondents in the reply to the restoration application. Reply to

that application was filed by the appellants and the averments

made in the application were denied and the appellants

requested for dismissal of the application filed on behalf of the

respondents. Lastly, learned counsel for the appellants urges

that in the restoration application, it has nowhere been stated

that the counsel for the appellants was unable to move and on

the basis of the documents submitted by the respondents in

regard to appearance of the learned counsel for the appellants

before other Benches and Central Administrative Tribunal,

Jodhpur Bench, Jodhpur, it cannot be proved that the learned

counsel for the appellants herself appeared in the cases on

06.12.2017.

On the contrary, learned counsel appearing on behalf of the

respondents stated that on 12.12.2013, application was filed for

early hearing on the ground that the parties to the litigation are

senior citizens and the same was allowed on 24.07.2017,

despite of that, time was obtained by the learned counsel for the

appellants on 24.08.2017 and 06.09.2017. Thereafter, one

application under Order 22 Rule 4 read with Section 151 CPC was

moved on behalf of the third party, being supported by the

appellants which was rejected on 13.11.2017. In this manner,

the appellants have not argued the second appeal by obtaining

time, again and again. Learned counsel for the respondents

further stated that on the one hand, no instructions were pleaded

by the learned counsel for the appellants on 13.11.2017 and on

the other hand, in para-3 and 4 of the restoration application,

ground was taken that on 05.12.2017, counsel for the appellants

fell down from the stairs as a result of which, she sustained

injuries in leg and kamar (waist) and, therefore, Shri Jai Shanker

Mehar, Junior of the learned counsel for the appellants, was

directed to appear before the Court. Similarly, in para-9 of the

reply to that application, it was clearly mentioned that, "when the

matter was on the verge of getting decided then, they filed

frivolous application before the Hon'ble Court which shows their

conduct that they are not taking the litigation seriously". He

further stated that the copies of the order-sheets were also

submitted for perusal of this Court which shows that the counsel

for the appellants appeared before other Benches of this Court

and before the Central Administrative Tribunal, Jodhpur Bench,

Jodhpur on 06.12.2017. Lastly, he urges that the second appeal

was restored upon false affidavit and this fact goes to the root of

the cause on which, the restoration order dated 29.07.2019 was

passed, therefore, the application filed on behalf of the

respondents for recalling of the restoration order 29.07.2019

may kindly be allowed; and the S.B. Civil Restoration Application

No. 35/2018 may kindly be ordered to be restored to its original

number for re-hearing. Learned counsel for the respondents

stated that the appellants have filed a separate suit before the

concerned Revenue Authority for correction in the revenue

entries.

In reply to the above submissions, learned counsel for the

appellants stated that the restoration order dated 29.07.2019 is

an appealable order under Order 43 CPC but no such appeal was

filed against that order and even no review petition against the

order of restoration was filed on behalf of the respondents.

Learned counsel also stated that there is no specific provision for

recalling of any order passed by this Court. So far as the aspect

of changes in the revenue entries is concerned, learned counsel

for the appellants submitted that separate suit was not filed by

the appellants and there is no need to file separate suit for

correction in the revenue suit as, without filing any suit for

correction by the respondents, requisite correction in the revenue

entries was made by the concerned Tehsildar at the so called

application/prayer made on behalf of the respondents, by

concealing the fact that the second appeal was dismissed but not

on merits.

This Court heard the arguments of both the sides on the

above referred applications and going through the entire record.

It is an admitted position on record that the restoration

application of the appellants was allowed in the presence of the

learned counsel for the respondents. The application for

restoration of second appeal was filed with the affidavit of

learned counsel (Ms. Kaushar Parveen) for the appellant herself

on 15.01.2018. Reply to the Restoration Application was filed by

the learned counsel for the respondents on 20.07.2019, i.e., after

lapse of one and half year. In the memo of the restoration

application, it has been clearly mentioned by the learned counsel

for the appellants that, "that due to falling from the staircase,

she sustained injuries in her leg and waist and for this reason,

she has instructed her junior namely, Shri Jai Shanker Mehar to

attend the matter but before making any submissions on behalf

of the appellants by her junior, the Court had passed order for

dismissal of the second appeal for want of prosecution. It is

pertinent to mention here that despite of ample opportunities,

this fact stated on oath that due to falling from staircase, counsel

for the appellants sustained injuries in her leg and kamar (waist),

was not specifically denied by the learned counsel for the

respondents in the reply to the restoration application. It is

relevant to mention here that the application for recalling of the

order of restoration has been filed by the respondents on

16.09.2019, i.e., after about two months of restoration of the

second appeal and after filing of the application under Sections

151 and 141 CPC on 24.08.2018. This Court is of the opinion that

the application preferred on behalf of the respondents for

recalling the order of restoration passed by this Court on

29.07.2019 is not sustainable in the facts and circumstances of

the present case. In this view of the matter, this Court is of the

opinion that the application filed on behalf of the respondents

seeking recalling of the restoration order dated 29.07.2019

passed by this Court in S.B. Civil Restoration Application No.

35/2018 deserves to be rejected and the same is hereby rejected

as such.

So far as the argument in regard to order sheets submitted

for perusal of this Court is concerned, suffice it to say that first of

all it was not argued on behalf of the learned counsel for the

appellants that due to illness, learned counsel appearing on

behalf of the appellants is not coming to the Court; and apart

from that simply on the basis of mentioning the name of

appellants/applicants in the order-sheets of coordinate Benches

and order-sheets of the Central Administrative Tribunal, it cannot

be established that she herself appeared before the concerned

coordinate Benches or Central Administrative Tribunal. Thus, in

general practice, the name of the appearing counsel for the

parties whose name is mentioned in the cause-list/upon the file

cover, is mentioned in the order-sheets at the place of

appearance.

So far as the argument in regard to requirement of filing of

the suit before the Revenue Authorities is concerned, no proof to

this effect has been filed by the learned counsel for the

respondents which shows that the suit for correction in the

entries before the Revenue Authorities was filed by the appellants

and since entries were not changed after declaring the rights of

parties, therefore ,in my humble opinion, there is no need to file

separate suit in the above circumstances.

So far as the applications filed on behalf of the appellants

are concerned, this Court is of the opinion that the respondents

cannot be allowed to take advantage of dismissal of the second

appeal for want of prosecution. Therefore, both the applications

preferred on behalf of the appellants deserve to be allowed.

As a result of the discussion foregoing, the application dated

16.09.2019 is rejected; and the applications dated 14.08.2019

are allowed. As a necessary consequence, the Revenue

Authorities are directed to restore the status quo ante in the

revenue records which was prevailing prior to the date

13.04.2006 vide which this appeal was admitted by this Court for

consideration by framing substantial questions of law; and later

on, the entries in the revenue records were substituted by the

Revenue Authorities in view of the order dated 06.12.2017

passed by this Court, dismissing the appeal for want of

prosecution.

All the three applications are disposed of accordingly.

(DEVENDRA KACHHAWAHA),J 54-Mohan/

Powered by TCPDF (www.tcpdf.org)