Court No. - 57
Case :- WRIT - C No. - 9455 of 1998 Petitioner :- Joginder Singh Respondent :- Addl. Commssioner Ivth & Others Counsel for Petitioner :- V.K. Dixit,S.S. Sharma Counsel for Respondent :- C.S.C.,Amresh Singh,Ramendra Asthana,Shamsher Singh,V.K.Singh
Hon'ble Pankaj Bhatia,J.
The petitioner has challenged the order dated 29.11.1997 whereby the revision filed by the petitioner against the order dated 12.12.1995 was dismissed.
Brief facts in the present case are that by means of an ex-parte order dated 08.07.1994 suit filed by Mahendra Singh was allowed ex-parte. In the said order, it was recorded that despite service of notice the respondents have not put in appearance and, thus, the Additional Collector proceeded to decide the matter ex-parte and cancelled the lease in favour of Joginder Singh and others.
Aggrieved against the said ex-parte order dated 08.07.1994, Sri Joginder Singh, the present petitioner, filed an application dated 21.10.1994 seeking recall of the order dated 08.07.1994 mainly on the ground that ought to have been heard as the order dated 08.07.1994 has mainly affected his rights. The said application was allowed on 27.03.1995, ex-parte this time without serving a copy thereof on Mahender Singh in whose favour the order dated 08.07.1994 had been passed. On 14.08.1995 Sri Mahendra Singh filed an application for recall of the order dated 27.03.1995 on the ground that he had not been heard prior to the decision on 27.03.1995. On the said application, an order dated 12.12.1995 came to be passed whereby the application filed by Mahendra Singh was allowed and the order dated 08.07.1994 was restored. Aggrieved against the order dated 12.12.1995, the petitioner herein preferred revision under Section 333 of the U.P.Z.A. and L.R Act before the Additional Commissioner, Barielly seeking to quash the order dated 12.12.1995. The said revision came to be heard and was dismissed vide order dated 29.11.1997 which is impugned in the present writ petition.
The counsel for the respondent has argued that there is no person by the name of Joginder Singh living in village and in fact he is not living in the village and therefore, no patta could have been executed in his favour. He further submits that it is a benami litigation on behalf of the Joginder Singh even before this Court and thus the writ petition deserves to be dismissed.
On the other hand, the counsel for the petitioner has drawn attention of this Court towards the pendency of another litigation in between the parties wherein his litigation is going on in between the parties which establishes that the petitioner is very much or was very much a resident of the said village and in any case he submits that the patta ought not to have been cancelled ex-parte. The order dated 29.11.1997 on the face of it is wholly without application of mind in as much it only looks into the validity of the order dated 27.03.1995 which was passed ex-parte in favour of the petitioner while recording that prior to the passing of the order dated 27.03.1995 no notice was served to Sri Mahendra Singh and inappropriately concludes that there is no error in the order dated 12.12.1995. The approach of the revisional Court as well as the lower court are wholly without any reason inasmuch as that it is well established that matters relating to the rights should not be decided ex-parte unless it is established that the defendant is mala-fidely not attending the proceedings. It is also well settled that the matters specially relating to land rights should be decided after hearing all the parties. At the first instance, in the present matter the lower court should have recalled the order dated 08.07.1994 on the application dated 02.10.1994 as the same was well within reasonable time and the matter should have been decided after hearing the parties. The approach of the lower Court has made to this long drawn litigation pending since the order 1994. Mainly when the court below has not recalled the order dated 08.07.1994 at the first instance itself.
In view of the fact stated herein above, I quash the order dated 29.11.1997 and the order dated 12.12.1995 as well as the ex- parte order dated 08.07.1994 and direct the respondent No. 2 to hear and decide the Suit No. 10/94 under Section 198(4) of U.P. Z.A. and L.R. Act, Mahendra Singh vs. Swarn Singh and others after hearing the parties including the petitioner Joginder Singh as most expeditiously as possible preferably within a period of six months.
Both the parties to the present petition are directed to appear before the respondent No. 2 or the concerned Court on 16th January, 2019 and on both the parties appearing before him, the Court concerned will decides the date on which the matter is to be heard and shall proceed to decide the matter as indicated above expeditiously. This Court has gone into the merits of the matters which would be decided by the Court below.
Sri Mahendra Singh died during the pendency of the revision and is survived by his son Manohar Singh. He and the petitioner will appear before the Court below.
Substitution application in that regards has already been allowed.
This writ petition stands Disposed off .
Order Date :- 19.12.2018 sushma