Kalloo v. State of U.P

A.F.R. Court No. - 3 Case :- WRIT - C No. - 1002288 of 1994 Petitioner :- Kalloo Respondent :- State of U.P. Counsel for Petitioner :- S.K. Bartariya,Vinay Misra Counsel for Respondent :- A.K.Verma,C.P.M.Tripathi,Manjive Shukla,Manju Gupta Hon'ble Irshad Ali,J.

¶1Heard Sri Vinay Misra, learned counsel for the petitioners and learned Standing Counsel for the State-respondent.

¶2Despite repeated time granted to the learned Standing Counsel for State-respondent, no counter affidavit has been filed till date and the case was adjourned on several occasion on the request of learned Standing Counsel and learned counsel for the petitioners.

¶3Factual background of the case is that the petitioners were under occupation of the land bearing plot No.775-C measuring 8 bigha, 7 biswan and 15 biswansi situated in village Bhishampur Kumhrawan, Tehsil Malihabad, District Lucknow.

¶4It is the case of the petitioners that the above land was never in possession of respondent no.4 whose mother was the Zamindar but only to defeat the claim of the petitioners, declared the said land as surplus which caused a clot on the title and right of the petitioners to cultivate the land in question.

¶5For declaration of their title in respect of the said land, the petitioners filed a suit on 23.2.1983 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act for declaring the petitioners as Bhumidhar of the l and in question. In the aforesaid suit, notices were served on all the respondents including the State respondents but no respondent ventured to file the objection/ reply to the said suit and in these circumstances the suit was decreed on 31.8.1988 by the respondent No.5 declaring the petitioners as Bhumidhars of the land bearing plot No.775 measuring 8 bigha, 7 biswan and 15 biswansi situated in village Bhishampur Kumhrawan, Tehsil Malihabad, District Lucknow. The decree of the suit is annexed as Annexure-1 to the writ petition.

¶6In the aforesaid suit, the State was a party who kept silent silent for almost a year and on 12.8.1989, respondent Nos.1 to 3, through D.G.C. (Revenue) moved an application under Order IX Rule 13 C.P.C. read with Section 151 C.P.C. for setting aside the judgment and decree dated 31.8.1988 on the ground that the said suit has been decided ex-parte.

¶7The aforesaid recall application was not supported by any affidavit nor any application under Section 5 of the Limitation Act was filed and even no prayer to condone the delay in filing the recall application was made. The application for setting aide the judgment and decree dated 31.8.1988 was strongly contested by the petitioner and respondent Nos.1 to 3 failed to show any Rule or Law which could facilitate the court to set aside the judgment and order dated 31.8.1988 and consequently, the court rejected the application vide order dated 8.4.1994.

¶8After passing of the order dated 8.4.1994, the remedy open to the respondent Nos.1 to 3 was to prefer an appeal under Section 331 (4) of the U.P. Zamindari Abolition and Land Reforms Act, but the respondents chose to file an application under Section 151 C.P.C. on 29.4.1994 with the prayer that the order dated

8.4.1994 may be reviewed and the ex-parte judgment and order dated 31.8.1989 may be set aside and the suit may be decided on its respective merits.

¶9In the above said application, no affidavit was appended and the same ground as was taken earlier in the application so preferred under Order 9 Rule 13 C.P.C., which had been decided and rejected on 8.4.1994. The land in question came under consolidation operation and notification under Section 4 of the U.P. Consolidation of Holdings Act was issued and published in the U.P. Gazette on 9.4.1994.

¶10The application preferred by the respondent Nos.1 to 3 on

20.4.1994 was decided on 20.7.1994 and the decree and order dated 31.8.1988 was set aside.

¶11The petitioners have filed the present writ petition challenging the order dated 20.7.1994 (Annexure-7 to the writ petition), passed by the respondent No.5 as also last line of the order dated 20.7.1994 (Annexure-6 to the writ petition), after summoning the record.

¶12Assailing he order dated 20.7.1994, submission of learned counsel for the petitioners is that since village Bhishampur Kumhrawan, Tehsil Malihabad, District Lucknow has been brought under consolidation operations and notification to that effect was published on 9.4.1994 and thus, even if the proceedings had been pending, they would have abated but in the instant matter on 8.4.1994, the application so preferred by respondent Nos.1 to 3 for setting aside the order dated

31.8.1988 was rejected and thus on 9.4.1994 nothing was pending.

¶13Second submission is that village has been brought under consolidation operations vide notification dated 9.4.1994, the respondent No.5 lost all control over the proceedings and thus, he acted illegally and without authority of law in entertaining the application and then setting aside the judgment and decree dated 31.8.1988 vide judgment and order dated 20.7.1994.

¶14Third submission is that the petitioners are in continuous and uninterrupted possession over the land in question since before 1356 fasli and have become Bhumidhars by operation of law. It is further submitted that the respondent Nos.1 to 3 could not have invoked the jurisdiction under Section 151 C.P.C. for the same relief for which they had earlier moved an application under Order IX Rule 13 C.P.C. read with Section 151 C.P.C. which had been rejected and thus, the second application for same cause was barred by res-judicata.

¶15Next submission is that inherent powers so provided under Section 151 C.P.C. can only be invoked where there is no other alternative remedy before the aggrieved party but in the instant case, remedy open to the respondents was prefer an appeal under Section 331 (4) of the U.P. Zamindari Abolition and Land Reforms Act.

¶16On the other hand, learned Standing Counsel states that the respondent has not committed any mistake in passing the impugned order dated 20.7.1994. The same is just and valid and does not suffer from any infirmity or illegality.

¶17After having heard the rival contention of learned counsel for the parties, I perused the material on record.

¶18It is reflected that at earlier point of time, the respondent Nos.1 to 3 moved an application under Order 9 Rule 13 C.P.C. read with Section 151 C.P.C. before the authority concerned, which was rejected vide order dated 8.4.1994 and the remedy available to the respondent Nos.1 to 3 was that they would have filed an appeal under Section 331 (4) of the U.P. Zamindari Abolition and Land Reforms Act, but they chose the file an application under Section 151 C.P.C., which is barred by res-judicata. In the opinion of the Court, the argument advancedb y the learned counsel for the petitioner has substance. The respondent Nos.1 to 3 having no jurisdiction to move an application under Section 151 C.P.C. before the revenue authority for setting aside the order passed on 20.7.1994.

¶19On perusal of the record, it is also reflected that a notification under Section 4 of Consolidation of Holdings Act was issued by the State Government on 9.4.1994, therefore, the power to entertain the application by other modes were not available to respondent Nos.1 to 3 due to abating of the proceedings, thus, the respondent acted illegally and without authority of law in entertaining the application and setting aside the judgment and decree dated 31.8.1988 vide judgment and order dated 20.7.1994. this action of the respondent is illegal and suffers from vices of rule of law.

¶20The inherent power so provided under Section 151 C.P.C. can only be invoked where there is no alternative remedy before the aggrieved party, but in the instant case, the remedy was to file an appeal under Section 331 (4) of the U.P. Zamindari Abolition and Land Reforms Act, therefore, the order passed on the application filed under Section 151 C.P.C. is wholly without jurisdiction and is liable to be set aside.

¶21The otherwise argument advanced by learned counsel for the respondent has no force of law, therefore, it is hereby rejected.

¶22In view of the above, in the considered opinion of the Court, the order impugned being wholly without jurisdiction, suffers from vices of res-judicata, therefore, is not sustainable in law and is hereby set aside. The writ petition succeeds and is allowed.

¶23No order as to cost.

¶24Connected writ petition(s) may be de-linked. Order Date :- 12.11.2024 Gautam High Court of Judicature at Allahabad, Lucknow Bench