Order on Substitution Application No. 344454 of 2010.
Heard learned counsel for the parties.
This application was filed reporting that the heir of petitioner no. 2 who died on 15.10.2010 is already on record as petitioner no. 1. A copy of the said application had been served on the learned counsel for the respondents on 26.11.2010.
No objection having been filed, the application stands disposed of in terms as prayed for.
Order Date :- 3.1.2012 Akv Court No. - 5 Case :- WRIT - B No. - 51942 of 2002 Petitioner :- Smt. Leelawati & Another Respondent :- D.D.C, Mau & Others Petitioner Counsel :- H.S.N. Tripathi Respondent Counsel :- C.S.C.,G.S. Srivastava,Sharad Kumar Hon'ble Amreshwar Pratap Sahi,J.
Heard Sri H.S.N. Tripathi, learned counsel for the petitioners, Sri G.S. Srivastava, learned counsel for the contesting respondents and the learned Standing Counsel.
The dispute relates to succession over the holding in question.
The challenge is to the order passed by the Deputy Director of Consolidation (annexure 3 to the writ petition) dated 30/31.10.2002.
The writ petition was entertained and one of the grounds advanced on behalf of the petitioners was to the effect that certain documents by way of additional evidence were adduced before the consolidation authorities that has been taken into account for delivering the orders without giving any opportunity to the petitioners to rebut the same. These facts have been categorically stated in paragraphs 9 to 12 of the writ petition.
The writ petition was entertained and the following interim order was passed on 04.12.2002:
"It has been submitted by the learned counsel for the petitioner that Settlement Officer Consolidation while dismissing the appeal of the opposite party has recorded a finding that certain documents filed by the opposite party have been manufactured after the dispute came into existence. Learned counsel submits that before the revisional court also revisionist/opposite party filed certain additional evidence/document to which petitioner has not been given any opportunity and relying upon those additional evidence Deputy Director Consolidation has allowed the revision.
Sri Srivastava, learned Advocate who appears for the private respondents submits that before the Deputy Director Consolidation, in relation to the additional evidence petitioner has ample opportunity and in fact no application was moved on his behalf claiming any further opportunity in the matter and the application which is filed before this Court to demonstrate that opportunity was claimed but that was denied by the Deputy Director Consolidation is manufactured document as the same was never filed before the Deputy Director Consolidation.
Be as it may, in order to test the correctness of the aforesaid statement as prayed by Sri Srivastava he may file affidavit along with question answer and also copy of the complete order sheet from the date on which additional evidence was filed by his client.
List this matter on 12.12.2002."
A short counter affidavit was filed and the contention raised is, that the allegations contained in the writ petition, that an application had been filed seeking time to rebut the said document, was a false averment and that the question and answer issued from the revisional court indicates that no such application had been filed on behalf of the petitioners.
A rejoinder to the said counter was filed and a supplementary affidavit dated 3rd of May, 2004 was brought on record categorically stating therein that the documents which were filed by way of additional evidence were taken on record behind the back of the petitioners on 28.10.2002 when the date of last final hearing had already passed on 26.10.2002. Through this supplementary affidavit the said application of the respondents for accepting additional evidence was brought on record. A counter came to be filed by the respondents denying the allegations contained in the said supplementary affidavit to which a supplementary rejoinder affidavit has been filed by the petitioners.
The short issue therefore on which the fate of the petition would turn is as to whether the contention raised on behalf of the petitioners that the order impugned is against the principles of natural justice is correct or not.
On the exchange of pleadings, it is clear that there is a denial about moving of an application by the petitioners seeking time for rebuttal.
Nonetheless along with the supplementary affidavit dated 03.05.2004, is the copy of the application dated 26.10.2002 said to have been filed by the respondents along with several documents reference whereof is given therein. On the left hand side of the document there is an endorsement of KOF (keep the same on file) and the date endorsed beneath the same is 28.10.2002.
The contention of Sri G.S. Srivastava is to the effect that the said averments have been denied in the supplementary counter affidavit.
I have perused the supplementary counter affidavit which does not state that the document which has been filed along with the supplementary affidavit is fake or fictitious nor any explanation has been given for the same.
Further the folio which is at page 6 of the supplementary affidavit indicates the date of the application as 26.10.2002/28.10.2002. This appears to be an official endorsement of the status of the accompanying document and as such supports the contention of the petitioners that it was brought on record on 28.10.2002. The recital in para 4 of the supplementary counter affidavit that the documents were filed on 26.10.2002 in the presence of the counsel does not appear to be correct.
The respondents in their short counter affidavit have filed the order-sheet and the endorsement against the date of 26.10.2002 is that the opposite party has filed written arguments. It does not indicate filing of additional evidence. This also therefore fortifies the view that the additional evidence was not adduced on 26.10.2002.
In such a situation, it has to be believed that these documents came to be brought on record after the final hearing was over and behind the back of the petitioners. Accordingly, in the opinion of the Court, the Deputy Director of Consolidation, therefore, committed a procedural violation and the impugned order has been passed against the principles of natural justice.
Sri G.S. Srivastava then contends that these documents were nothing else but were the photostat copies only in relation to the documents which have been filed before the Settlement Officer Consolidation. It is trite law that a photostat copy of any document is inadmissible in evidence as held by this Court in the case of Smt. Manorama Srivastava and another Vs. Smt. Saroj Srivastava reported in AIR 1989 Allahabad 17.
In such a situation when any certified copy or original document which was filed for the first time before the Deputy Director of Consolidation, he should have taken care to have provided sufficient and reasonable opportunity to the petitioners to rebut the same. The contention therefore raised by Sri G.S. Srivastava for the contesting respondents cannot be accepted. Accordingly, the impugned order dated 30/31.10.2002 passed by the Deputy Director of Consolidation is quashed.
The matter is remitted back to the Deputy Director of Consolidation for decision afresh. The petitioners shall file their objections or rebuttal in relation to the said documents which have been filed as additional evidence and about which a narration has been made by the respondents in the counter affidavit before this Court within a period of one month from today. The Deputy Director of Consolidation shall thereafter proceed to dispose of the petition after giving opportunity to the petitioners and the respondents to stake their respective claims within a period of three months thereafter.
The writ petition is allowed.
Order Date :- 3.1.2012 Akv