IMPORTANT POINT
A significant delay in challenging a decree must be adequately explained; vague allegations of fraud without evidence are insufficient.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri Siddharth Nandan, Advocate holding brief of Ms. Anjali Singh, learned counsel for petitioners, Sri U.K. Saxena, learned Senior Counsel assisted by Sri Shailesh Kumar Shukla, learned counsel for respondent No. 5 and Sri Anil Kumar Singh Baghel, learned Standing Counsel for State.

2. In the present case, in the year 1974, a suit was filed under Section 229-B of Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, by father of the respondent No.5 against father of the petitioner.

3. The said suit was decreed ex-parte by a judgment dated 01.02.1975, whereby the contesting respondents were declared co-sharer with petitioners and accordingly the respondent No.5 got his name mutated in Revenue Record.

4. The above proceedings remain unnoticed by present petition for about 48 years. It is petitioners’ case that when on 25.04.2022, some part of land in suit was acquired by National Highway Authority and respondent No.5 claimed entire compensation in his name only and nothing was provided to petitioners on basis of a sale-deed between respondent No.5 and National Highway Authority, matter was enquired.

5. At this stage, petitioners allegedly came to know about a decree passed in the year 1975 and, therefore, they filed an application under Order 9 Rule 13, read with Section 151 C.P.C. on 04.05.2022 alleging that their signatures were forged and without authority they were made plaintiff in the suit by contesting respondent only to get benefit in exclusion of petitioners by putting their imposters. There was no reason to file a suit against their father.

6. In above application, no separate application for condonation of delay was filed but in paragraph No.11, the reasons for condonation of delay were mentioned and in paragraph 12 of it, a prayer was made to condone the delay. For reference, the relevant paragraphs of application are reproduced hereinafter :-

7. The contesting respondents have filed objections wherein it was prayed to reject the said application on ground of delay as well as on merit.

8. During pendency of above referred recall application, petitioners have also moved an application on 04.08.2022 for appointment of a handwriting expert to verify the allegation of forged signatures.

9. The application filed under Order 9 Rule 13 was dismissed by an order dated 08.03.2024, mainly on ground that father of petitioners has not objected or challenged the order dated 01.02.1975 during his life time. Petitioners’ father was served and there was no ground to condone the huge delay. The relevant part thereof is mentioned hereinafter :-

10. The above referred order was challenged by petitioners before the Board of Revenue, however, it was also got dismissed by order dated 13.06.2024 on similar ground and for reference, relevant part thereof is mentioned hereinafter :-

11. In the aforesaid circumstances, this writ petition is being filed. Learned counsel for petitioners has harped mainly upon that contesting respondents have included petitioners as plaintiff as imposter and their signatures were forged, however, there is no expert opinion on record as well as application filed for expert opinion does not appear to be effectively pressed.

12. So far as merit is concerned, it could not be considered at this stage since this case is presently arising out of an application filed under Order 9 Rule 13 C.P.C. i.e. to set aside ex-parte order whereby it was dismissed since no explanation was given to condone delay i.e. delay was not condoned.

13. Learned counsel for contesting respondents has supported the impugned order that a huge delay of about 48 years has not been explained properly. No separate application was filed for condonation of delay as well as that allegation of fraud and forgery was not established even prima facie.

14. Heard counsel for parties and perused the record.

15. The Supreme Court in a very recent case of Pathapati Subba Reddy (Died) By L.Rs. and Others Versus Special