Court No. - 4
Case :- WRIT - C No. - 31014 of 2019 Petitioner :- Trilok Singh Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Sunil Kumar Singh Counsel for Respondent :- C.S.C.,Ashok Kumar Pandey,Rajiv Kumar Mishra
Hon'ble Bala Krishna Narayana,J. Hon'ble Prakash Padia,J.
Heard learned counsel for the petitioner, learned Standing Counsel for respondent nos.1 and 2, Sri Ashok Kumar Pandey, learned counsel for respondent no.3 and Sri Satyendra Kumar Mishra, learned counsel for respondent nos.4 and 5.
With the consent of learned counsel for the parties, this writ petition is finally disposed of at the stage of admission without calling for any counter affidavit.
Primarily, the dispute in this case is amongst the petitioner- Trilok Singh, respondent no.4- Jokhan and respondent no.5- Ram Sabad with regard to the title of plot no.321 situated in Village Chakia, Pargana Mahul, Tehsil Phoolpur, District Azamgarh (hereinafter referred to as "disputed plot") which was acquired by respondent no.3 for the purpose of widening of National Highway no.56. It appears that the petitioner claims himself to be the owner of the disputed plot on the strength of the sale deed dated 14.12.1984 allegedly executed in his favour by one Smt. Gungiya w/o one Abhai Raj, which was cancelled by an ex-parte judgement and decree dated 20.5.1987 passed by learned Civil Judge (Junior Division) in Original Suit No.908 of 1986 filed by respondent nos.4 and 5 against the petitioner. The application filed by the petitioner under Order IX Rule 13 for setting aside the ex-parte judgement and decree dated 20.4.2006 was allowed by the learned Civil Judge (Junior Division) by his order dated 17.11.1988 which was challenged by respondent nos.4 and 5 by filing a first appeal from order before the District Judge, Azamgarh, which was allowed by Additional District Judge by his order dated 29.5.1989, and the same was challenged by the petitioner before this Court by filing Civil Misc. Writ Petition No.10185 of 1989 which was finally disposed of by learned Single Judge of this Court by order dated 20.4.2006, copy whereof has been brought on record as Annexure-3 to the writ petition. It would be useful to extract the operative portion of the order dated 20.4.2006 herein below :-
"Having heard learned counsel for the parties, I am of the opinion that the submissions as made by learned counsel for the respondent has substance and is liable to be accepted by this Court. Learned counsel for the respondent has also argued that it would be proper that the petitioner moved a fresh application under Order IX Rule 13, which may be considered afresh by the Court below taking into account of the facts and circumstances of the case including the allegations of fraud.
In view of the passage of time, which is 20 years, I think it would be proper and in the interest of justice that this matter is remanded back to the Trial Court, which will reconsider the application made by the petitioner under Order IX Rule 13 and examine the matter in all its aspects. It is also expected that it will decide the said application expeditiously, preferably, within a period of one year. The parties will maintain status quo during this period. Parties to the suit will not be allowed frivolous or unreasonable adjournments during this period.
The writ petition is disposed of. But there will be no order as to costs. "
There is nothing on record indicating that in compliance of the order of this Court dated 20.4.2006, the petitioner has filed any application under Order IX Rule 13 of C.P.C. before the Civil Judge (Junior Division). However, during the course of the arguments, he has submitted that an application under Order IX Rule 13 of C.P.C. has been filed by him which is still pending. The aforesaid fact is not disputed by learned counsel for respondent nos.4 and 5. It further appears that during the pendency of the civil litigation, the disputed plot was acquired alongwith two other plots and an award was made on 17.6.2019 in favour of respondent nos.4 and 5. Aggrieved with the award, the petitioner filed an application before respondent no.2 with a prayer to stop the payment of a compensation to the respondent nos. 4 and 5 on which an interim order was passed by respondent no.2 on 21.6.2019, copy whereof has been brought on record as Annexure 6 to the writ petition. However, by the impugned order dated 22.7.2019 respondent no.2 has rejected the application filed by the petitioner before him on 20.6.2019 (Annexure-1 to the writ petition), holding that the petitioner had failed to lead any evidence before him in support of his claim that he is the owner of the disputed plot.
It is contended by learned counsel for the petitioner that the impugned order has been passed by respondent no.2 upon an erroneous premise that the petitioner was heard by him before passing the same whereas the correct fact is that no opportunity was given to the petitioner to adduce evidence in support of his claim. It is further contended that the recital contained in the impugned order that the petitioner had appeared before respondent no.2 on 20.7.2019, but he had neither adduced any evidence nor sought further time to adduce evidence before him, is absolutely incorrect. He lastly submitted that the impugned order which has been passed by respondent no.2 in gross violation of principles of natural justice although the same carries severe consequence, cannot be sustained and is liable to be set aside.
Per contra, Sri Satyendra Kumar Mishra has submitted that the impugned order does not suffer from any illegality or infirmity and the submission made by learned counsel for the petitioner that the recital contained in the impugned order that although the petitioner had appeared before him on 20.7.2019,, but had neither adduced any evidence nor sought further time to adduce any evidence before him is incorrect, is not warranted by any material on record. It is lastly contended that since the petitioner had failed to adduce any evidence in support of the claim, the respondent no.2 rightly rejected his claim. This writ petition which lacks merit, is liable to be dismissed.
After having heard learned counsel for the parties and perused the material brought on record, we feel that there is no dispute about the fact that the issue regarding the validity of the sale deed dated 14.12.1984 allegedly executed by Smt. Gungiya w/o one Abhai Raj, is still engaging the attention of the Civil Court in Original Suit No.908 of 1986 filed by respondent nos.4 and 5 against the petitioner, and hence, before passing the impugned order, in our view, respondent no.2, should have given reasonable opportunity to the petitioner to produce material in support of his claim. This having not been done, the impugned order dated 22.7.2019 is quashed.
We limit this matter only to respondent no.2 with the following directions :-
1- The petitioner shall appear before respondent no.2 on 23rd October, 2019 and file all the material on which he proposes to rely in support of his claim before him.
2- Respondent no.2 shall thereafter issue notice to respondent nos.4 and 5 fixing 4th November, 2019, for their appearance before him and filing evidence in rebuttal.
3- Respondent no.2 shall thereafter, pass order in the matter after affording opportunity of personal hearing to the petitioner and the respondent nos.4 and 5 within a further period of four weeks.
Accordingly, the writ petition stands disposed of.
Order Date :- 26.9.2019/Shalini