Court No. - 21
Case :- WRIT - B No. - 728 of 2021 Petitioner :- Ramesh Kumar Khare Respondent :- State Of U.P. And 11 Others Counsel for Petitioner :- Suraj Pandey,Ashok Kumar Pandey Counsel for Respondent :- C.S.C.
Hon'ble Dinesh Pathak,J.
Sri Arvind Kumar Rai, learned counsel, has filed his vakalatnama on behalf of the respondent no.5, today in the Court, which is taken on record.
Heard Sri Ashok Kumar Pandey, learned counsel for the petitioner, learned Standing Counsel, who represents respondent nos.1, 2 & 3, Sri Arvind Kumar Rai, learned counsel for the respondent no.5 and perused the record.
In view of the peculiar facts and circumstances of the case and the order proposed to be passed hereunder, this Court proceeded to finally decide this matter at the admission stage, without putting notices to the respondent nos.4, 6 and 7 to 12.
Instant writ petition has been filed by the petitioner challenging the order dated 01.02.2021 passed by Board of Revenue (respondent no.2).
Grievance of petitioner is that interim order, granted earlier, has illegally been refused to extend by the Board of Revenue.
Revision pending before Board of Revenue is arising out of proceeding under section 229-B of U.P.Z.A. & L.R. Act. An interlocutory order dated 28.09.2007 passed by trial court is under challenge in aforesaid revision.
Respondent nos. 4, 5 & 6 have filed a suit under section 229-B of U.P.Z.A. & L.R. Act, registered as Original Suit No.724 of 1996, claiming their right and title over the property in question on the basis of registered sale deed said to have been executed in the year 1976. Aforesaid suit was decided vide ex-party judgement and decree dated 13.10.1997. Feeling aggrieved, one Smt. Shikha Pandey wife of Promod Pandey has filled recall application against the ex-parte judgement and decree dated 13.10.1997. On the aforesaid recall application learned trial court has passed interim order dated 28.09.2007, staying the effect and operation of ex-parte decree dated 13.10.1997.
Feeling aggrieved, respondent nos.4, 5 & 6, who were plaintiffs, have filed revision-petition before Board of Revenue, against the said interim order dated 28.09.2007. In the aforesaid revision-petition respondent no.1 has passed the order dated 09.10.2007 (Annexure No.7), admitting the appeal and issued notice to the respondents. Simultaneously, interim order was also granted, staying the effecting and operation of the order dated 28.09.2007.
During pendency of the revision-petition an injunction application dated 05.10.2020 (Annexure No.11) has been moved on behalf of present petitioner . Against the aforesaid injunction application revisionists have filed objection dated 26.10.2020 (Annexure No.12).
After hearing the parties, respondent no.1 has passed interim order dated 15.12.2020 (Annexure No.13), staying further construction over the plot in question and alteration thereof. Further more both the parties were directed to maintain status- qua on spot till the next date of listing. Aforesaid interim order was extended time to time. Lastly, vide impugned order dated 01.02.2021, it was refused to be extended by respondent no.1, which is under challenge.
Learned counsel for petitioner submits that respondent no.1 has illegally refused the extension of stay order, only on the oral objection made by counsel for the revisionist, whereas interim order was passed on the interim injunction application moved by respondents in revision.
Learned counsel for respondent no.5 has opposed the petition and contended that Board of Revenue has rightly refused to extend the interim order inasmuch as there was no need for extension of the interim and the revision is ready for final disposal. It is further contended that interim order dated 28.09.2007 passed by trial court, which is under challenged before the Board of Revenue is still stands and there is no need for any fresh interim order.
Perused the record on Board and considered the submission made by learned counsel for the parties.
Record reveals that interim order dated 15.12.2020 was refused to be extended by impugned order in very cursory manner without considering the grievances of petitioner which was averred in the interim injunction application filed on his behalf. Mere oppose made by counsel for the revisionist cannot be a ground to discontinue the interim order. Once the court has applied his mind in granting interim order after considering the contents of the affidavit filed in support of the application for stay and counter affidavit, there is no justification to discontinue the same until and unless court concern reconsider its relevance in the light of new facts and circumstances of case brought before him. Even otherwise, once the revision or appeal is admitted, then interim order, granted earlier, should not be discontinued to avoid the civil and legal consequence. Principle as enshrined under order XXXIX shall be resorted to protect the property involved in lis.
Record reveals that revision filed on behalf of respondent nos.4 to 6, before respondent no.1, was twice dismissed in default. It appears that interim order dated 15.12.2020 was passed by Board of Revenue, on the interim injunction application moved on behalf of present petitioner, after considering the objection filed by revisionist (respondent nos.4 to 6 herein the writ petition). It is evident that revision is already admitted, which is pending since 2007, on trivial issue, against order dated 28.09.2007, which was passed on the restoration application. Plaintiffs/respondents nos.4 to 6 have preferred revision and get the matter protracted at revisional stage, in place of filing a detailed objection alongwith the stay vacation application before trial court. Till date nothing has been decided finally with respective of the right and title of the parties, whereas suit had been decreed by ex-parte judgement and decree dated 13.10.1997. It appears that respondent nos.4 to 6 are trying to enjoy the fruits of ex-parte decree by getting the matter lingered on one or the other pretext. Protecting litigation in such manner is not justifiable in the eye of law.
In case of Ali Sher Vs. State of U.P., reported in 2007 (102), R.D. 498, coordinate Bench of this Court held that once an appeal or revision is entertained by higher Court, stay normally should be granted to avoid swinging pendulum. Relevant paragraph no.4 of the aforesaid judgement is quoted below:-
"It is well settled that once an appeal or revision is entertained by a higher Court against an order having civil consequences stay normally should be granted to avoid swinging pendulum unless the Court for the reasons to be recorded finds that there is no case for grant of stay as observed by the Hon'ble Apex Court in the case of Mool Chand v. Raza Buland Sugar Industries"
In this conspectus as above, no fruitful purpose would be served to keep this matter pending, therefore, this court deems it appropriate to finally dispose of the present writ petition, without making any observation on the merits of the case as mentioned in the present writ petition, with a direction to the Board of Revenue, (respondent no.2), to reconsider/review its order dated 01.02.2021 for revival of interim order dated 15.12.2020 which was passed after considering the relevant affidavits, exchanged between the parties, to protect the property in question and pass appropriate order, expeditiously, preferably, within the two weeks from the date of production of copy of this order, which shall be filed by the petitioners within ten days from today.
In view of the interlocutory order dated 28.09.2007 challenge in revision and pendency of restoration application against ex- parte judgement and decree dated 13.10.1997, it is expected that respondent no.1 should make endeavour to decide the revision pending before it, expeditiously, preferably, within the period of five months from the date in receipt of copy of this order.
It is expected that it should be decided by reasoned and speaking order, in accordance with law, after affording opportunity of hearing to the parties concerned without granting unnecessary adjournments.
The petitioner shall file computer generated copy of such order downloaded from the official website of High Court, Allahabad supported by an affidavit, which shall be verified by the concerned authority from the website of the High Court, Allahabad.
With the aforesaid observation, present writ petition is disposed of.
Order Date :- 12.8.2021 VKG