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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT JAMMU
PANKAJ MITHAL, RAJNESH OSWAL, JJ.
Swati Gupta – Appellant
Versus
Romesh Chand & Ors. – Respondents
LPAOW No. 58 of 2016
Decided on : 06-10-2021
APPEAL - Writ Petition Maintainability - Order 23 Rule 1, Tenancy Act Section 67, Section 68 - The court discussed the applicability of Order 23 Rule 1 of the Code of Civil Procedure to writ proceedings, emphasizing that while the underlying principles may apply, strict compliance is not required. It interpreted Section 67 of the Tenancy Act, which excludes daughters from inheriting occupancy rights, and Section 68, which allows appointed heirs to succeed with landlord consent. These interpretations influenced the court's decision to uphold the maintainability of the second writ petition despite the preliminary objections raised by the appellant.
Fact of the Case:
The appellant challenged the maintainability of a second writ petition filed by the respondents after the first was withdrawn. The appellant argued that the earlier withdrawal barred the new petition under Order 23 Rule 1 of the Code of Civil Procedure, claiming that the respondents failed to prove a new cause of action. The respondents contended that the appellant's legal standing was questionable under the Tenancy Act, as the appellant's daughter was substituted as the legal representative after the appellant's death.
Finding of the Court:
The court found that the newly substituted appellant had the right to continue the appeal, as the order from the Custodian Evacuee Property granting her rights was not challenged. It also determined that the learned Single Judge's order allowing the withdrawal of the first writ petition with liberty to file a fresh one was valid, as it did not contravene the principles of Order 23 Rule 1.
Issues: 'Whether the newly substituted appellant can continue with the appeal in light of Section 67 of the Tenancy Act.', 'Whether Order 23 Rule 1 of the Code of Civil Procedure applies to writ proceedings.'
Ratio Decidendi: The court held that daughters are excluded from inheriting occupancy rights under Section 67 of the Tenancy Act, but appointed heirs can succeed with landlord consent. It clarified that while the principles of Order 23 Rule 1 may apply to writ petitions, strict compliance is not necessary, and the learned Single Judge's discretion in allowing the withdrawal of the first writ petition was upheld.
Final Decision: The appeal was dismissed as the court found no merit in the appellant's arguments regarding the maintainability of the second writ petition.
JUDGMENT :
1. This intra court appeal has been preferred against order dated 25.09.2014 passed in OWP No. 702 of 2013 whereby preliminary objection raised by the deceased-appellant regarding the maintainability of the second writ petition filed by the respondent Nos. 1 to 3, has been rejected and order dated 14.09.2015 whereby the review petition filed against order dated 25.09.2014 has been dismissed with costs of Rs. 10,000/- by the learned Single Judge.
2. During the pendency of present appeal, the challenge thrown to the order dated 14.09.2015 passed in review petition before the learned Single Judge was withdrawn by the appellant.
3. The present appeal has been filed by the appellant impugning the judgment dated 25.09.2014 primarily on the ground that the finding recorded by the learned Single Judge that the order dated 14.05.2013 was passed in presence of the deceased-appellant in OWP No. 418 of 2013 is factually incorrect and as a matter of fact, no such statement was made on 25.09.2014 by either of the counsels who appeared on behalf of the deceased- appellant. Rather the fact remains that neither the deceased-appellant nor his counsel was present on 14.05.2013 when the first writ petition was withdrawn.
4. It is further stated that even the writ petitioners/respondent Nos. 1 to 3 never pleaded before the learned Single Judge in their reply that such statement was made by the learned counsel for the appellant. The order dated 14.05.2013 operates as a bar for filing second writ petition on the ground that the requirements o f provisions contained in Order 23 Rule 1(3) of the Code of Civil Procedure (for short the Code) have not been satisfied and the respondent Nos. 1 to 3 were required to prove that they after withdrawing earlier writ petition, had cause available for filing the fresh writ petition.
5. Sh. O.P. Thakur, learned senior counsel assisted by Sh. R.K.S. Thakur, Advocate appearing for the appellant has submitted that the writ petitioners cannot file another writ petition on the similar cause of action and it was for the writ petitioners to establish before the learned Single Judge that there was formal defect in the writ petition filed by them earlier that was allowed to be withdrawn conditionally vide order dated 14.05.2013 and further that the learned Single Judge has wrongly observed in the order that the counsel for the deceased-appellant was present on 14.05.2013, when the writ petition was allowed to be withdrawn conditionally.
6. Per contra, Sh. L.K. Sharma, learned senior counsel assisted by Sh. Mohit Kumar appearing for the respondents 1 to 3 (writ petitioners) has vehemently argued that as per section 67 of the Tenancy Act, the newly substituted appellant has no locus standi to continue with the present appeal and further that the provisions contained in Order 23 of the Code are not applicable in its entirety to the writ proceedings.
7. In rebuttal, Sh. O.P. Thakur, learned senior counsel has submitted that the Custodian Evacuee Property, Jammu, respondent No. 5 herein vide order dated 11.07.2016, pursuant to the application made by the newly substituted appellant on the basis of the Will executed by her father for granting consent in her favour for having inherited/succeeded rights after the death of her father who was occupancy tenant, has directed the Assistant Custodian/Tehsildar Bishnah to take appropriate action and has further observed that the office of Custodian Evacuee Property has no objection for bringing on record the appellant as legal heir on the basis of Will after the death of her father-Chaman Lal who was occupancy tenant. Sh. Thakur further argued that the writ petitioners have not challenged the said order till date.
8. Heard and perused the record.
9. The brief facts which are necessary for the disposal of the present appeal are that the respondent Nos. 1 to 3/writ petitioners filed a writ petition against one Chaman Lal, the deceased appellant and other respondents whereby a prayer was
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