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IN THE HIGH COURT OF ALLAHABAD
CHANDRA KUMAR RAI, J.
Ashok Kumar Singh - Petitioner
Versus
State of U.P. and Others - Respondents
Writ - B No. 44113 of 2014
Decided On : 28-01-2023
U.P.Z.A.& L R. Act - Suit under Section 229-B - 2020 (146) RD 1999 Ram Awadh Singh Vs. Additional Commissioner Azamgarh and others - The court discussed the scope of restoration application against the compromise decree and held that a stranger to the proceeding has no right to file a recall application. The impugned order recalling the judgment and decree at the instance of a stranger to the proceeding is an abuse of process of law.
Fact of the Case:
The suit under Section 229-B of U.P.Z.A. and L.R. Act was filed by Smt. Dubeya and Chandra Sen Singh and was decreed on the basis of a compromise. Subsequently, recall applications against the judgment and decree were filed by individuals who were strangers to the proceeding. The petitioner challenged the recall order through revision before the Board of Revenue, which was dismissed.
Finding of the Court:
The court found that the recall order at the instance of a stranger to the proceeding was an abuse of process of law. It also noted that the individuals who filed the recall applications had not filed any counter affidavit before the court, and one of them had even filed an affidavit stating that he had not filed any recall application. The court set aside the impugned orders and affirmed the judgment and decree passed on the basis of the compromise.
Issues: The issues revolved around the validity of the recall applications filed by strangers to the proceeding, the jurisdiction of the court to entertain such applications, and the abuse of process of law.
Ratio Decidendi: The court held that a stranger to the proceeding has no right to file a recall application against a judgment and decree passed on the basis of a compromise. It also emphasized that the individuals who filed the recall applications had not provided any evidence to support their claims and that the impugned orders were passed in an arbitrary manner without affording an opportunity of hearing to the plaintiff of the suit.
Final Decision: The impugned orders were set aside, and the judgment and decree passed on the basis of the compromise were affirmed. The writ petition was allowed with no order as to costs.
JUDGMENT :
1. Heard Mr. A.P. Tewari, Counsel for the petitioner, Mr. S.P. Yadav and Mr. Durgesh Chandra Tiwari, Counsel for the contesting respondent Nos.13, 14 and 15 and learned Standing Counsel for respondent Nos.1 to 3.
2. Brief facts of the case are that one Santu was recorded tenure holder of the plot in dispute and after death of Santu dispute arose and Smt. Dubeya widow of late Santu filed a suit under Section 229-B of U.P.Z.A.& L R. Act in respect to the plot mentioned in list 'A' of the plaint. The aforesaid suit was filed on 14.11.1990 bearing Suit No.180 of 1990. During pendency of the suit, one application has been filed by plaintiff Smt. Dubeya on 06.08.2005 for exclusion of name of defendant No. 1 to 5 and 9 to 25 from the array of the parties of defendant on the ground that their names have already been expunged from the revenue record. It was also prayed that Ramesh, Rakesh and Suresh sons of Ram Dhuni be added as defendant No.1, 2 and 3 in the array of the defendants of the suit. It is also prayed that in place of defendant No.4, the name of Pushpa Devi be added. Sub-Divisional Officer vide order dated 06.08.2005 allowed the application filed by plaintiff-Smt. Dubeya. Another application was filed on 19.07.2005 by plaintiff Smt. Dubeya for transposing Chandra Sen Singh as plaintiff No.2 in the array of the plaintiff. The aforementioned application was also allowed by Sub-Divisional-Officer by order dated 19.07.2005. The plaint filed by the plaintiff was accordingly amended. During pendency of the suit under Section 229-B of the U.P.Z.A. and L.R. Act parties to the suit have entered into compromise, which was dully identified by their Advocates in presence of the Court and the Sub-Divisional-Officer vide order dated 26.08.2005 decided the plaintiff-suit filed by Smt. Dubeya and Chandra Sen Singh in terms of the compromise vide judgment and decree dated 26.08.2005. Respondent No.7 (Dhunmun) and Respondent No.8 (Paras Nath Rai) moved a recall application dated 26.11.2005 and 23.09.2005 for recalling the judgment and decree dated 06.08.2005/26.08.2005. Petitioner filed one transfer application before the Commissioner Gorakhpur Division, Gorakhpur dated 16.12.2005 in which comments were invited and record was also summoned. Plaintiff No.2 Chandra Sen Singh filed an application on 17.12.2005 before trial court (Sub Divisional Officer) for summoning the Paras Nath Rai who filed recall application against the judgment and decree of the trial court. The Sub-Divisional Officer vide order dated 20.12.2005 directed that Paras Nath Rai be appeared in person as well as alleged Advocate Prahlad Singh, but on the date fixed before the Sub-Divisional Officer neither Paras Nath Rai, nor alleged Advocate, Prahalad Singh appeared. Sub-Divisional Officer without considering the aforesaid aspect of the case passed ex-parte order dated 22.12.2005 setting aside the order dated 26.08.2005. Against the order dated 22.12.2005 passed by Sub Divisional Officer, petitioner filed revision before the Board of Revenue, which was entertained and interim order was also granted on 09.01.2007. Board of Revenue has also called for certain enquiry from the Collector Gorakhpur vide order dated 12.01.2006 accordingly District Magistrate, Gorakhpur constituted three members committee to conduct inquiry and submit the report. A report dated 22.04.2006 has been submitted by three members committee to the Board of Revenue. The applicant of the recall application, namely Dhuman Prasad filed an affidavit before the Board of Revenue stating that he has not filed any recall application before the Sub-Divisional Officer against the judgment and decree dated 26.08.2005. The Board of Revenue has dismissed the revision filed by the petitioner vide order dated 24.07.2014. Hence this writ petition.
3. This Court while entertaining the writ petition has passed the following interim order dated 25.08.2014 :
A stranger to the proceeding has no right to file a recall application against a judgment and decree passed on the basis of a compromise.
The court affirmed that the trial court's decree granting bhumidhari rights was valid, and the Board of Revenue acted within its jurisdiction in upholding this decision.
A suit for declaration under Section 144 of the U.P. Revenue Code cannot be decided without framing issues and allowing evidence, and orders passed without jurisdiction are nullities.
The recall of benefits granted under Section 122B (4-F) of the U.P.Z.A. & L.R. Act is impermissible without following proper legal procedures.
Point of Law : It is now well settled that under writ jurisdiction, the Court will not exercise its powers to interfere in an order and set it aside by an order, the ultimate effect of which would be....
The court emphasized the necessity of providing a fair hearing before making decisions that affect parties' rights, reinforcing principles of natural justice.
The court ruled that an ex parte order requires a recall application to be maintainable, emphasizing the need for parties to be heard before any interim orders are issued.
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