Court No. - 9
Case :- WRIT - C No. - 25819 of 2019 Petitioner :- Daya Shankar Respondent :- Commissioner, Azamgarh And 11 Others Counsel for Petitioner :- A.P.Singh Counsel for Respondent :- C.S.C.,Amit Kumar Asthana,Ramesh Chandra Upadhyay
Hon'ble Anjani Kumar Mishra,J.
The instant writ petition arises out of a suit for partition filed by the respondent nos. 4 and 5 and seeks a writ of certiorari for quashing the order dated 13.03.2019 passed by the Commissioner i.e. respondent no. 1 and the order dated 04.06.2014 passed by the Sub Divisional Officer, Phoolpur, Azamgarh i.e. respondent no. 2.
On 16.09.2019 after hearing counsel for the parties, the following order was passed:-
"Heard learned counsel for the parties and perused the record as also the original record of Case No.T20191506030024, under Section 176 of the U.P. Zamindari Abolition and Land Reforms Act which record has been summoned by this Court.
The contention of the learned counsel for the petitioner is that Harihar- defendant No.1 in the suit had died on 26.09.2010. On 01.06.2011, the petitioner filed an application for abatement on the ground that no application has been filed to bring the heirs of the deceased Harihar.
On 15.06.2011, an application by the plaintiff respondent was filed, stating that a substitution application has been filed on 15.12.2010 within time but when the abatement application be filed, it transpired that the substitution application was not available on record.
The Court after hearing the parties, dismissed the abatement application vide order dated 04.06.2014, directing the plaintiff to take steps and file a fresh substitution application with regard to defendant no.1, Harihar.
The contention of the learned counsel for the petitioner is that the order dated 04.06.2014 was never complied with and no fresh substitution application was filed by the plaintiffs. In fact they filed an application for amendment in the earlier application dated 15.06.2011. Not only was such amendment application, not complete compliance of the order dated 04.06.2014, this amendment application has been allowed ex-parte, surreptitiously on 09.06.2014, which was not the date fixed in the suit. He submits in effect that there is no substitution application available on record and, therefore, the suit was liable to have been dismissed as abated.
I have examined the original record and I find that 09.06.2014, on which the amendment application for amending the application dated 15.06.2011 was allowed was not a date fixed in the suit.
The matter, therefore, requires consideration because, in any case, the order allowing the substitution application is manifestly illegal and has been passed on a date which was not the date fixed in the matter.
At this stage, learned counsel appearing for respondent no.5 states that he shall try to obtain the power also on behalf of other contesting respondents so that the matter may be disposed of finally at the admission itself specially because the present petition arises out of a suit for partition, which suit has been pending consideration since, 2003.
Accordingly, put this matter as fresh on 26.09.2019."
Today, on the matter being called out, Shri Amit Kumar Asthana has filed his power also on behalf of respondent nos. 4 and 7. Thus all the contesting respondents in the writ petition stand represented and with the consent of the parties, the writ petition is being decided finally without calling for a counter affidavit.
In view of what has been recorded in the order dated 16.09.2019 extracted above and since the order dated 09.06.2014 allowing amendment of an application dated 15.06.2011 was passed on a date which was not a date fixed in the matter, this order is necessarily ex-parte and is to be set aside.
The revisional order dismissing the revision filed by the petitioner and affirming the order dated 09.06.2014, for the same reason, is also required to be set aside.
Accordingly, I allow this writ petition and set aside the impugned order dated 09.06.2014 passed by the Sub Divisional Officer and the order dated 19.03.2019, passed by the Commissioner.
No orders as to cost.
Order Date :- 26.9.2019 sweta