# Baladin And Another v. D.D.C. And Others

- **Citation:** (2019) 1 ILRA 1053
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-10
- **Case number:** Writ - B No. 14352 of 1984
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/baladin-and-another-v-d-d-c-and-others-44399
- **Pages:** 7

## Headnote

A. Article 226 Constitution of India-
Amendment - Writ Petition pending since
1984-Amendment application filed in 2019
at the stage of Final Hearing-Rejected.
Application to postpone final hearing till
disposal of application under order IX rule
13 in O.S No. 355 of 1970. Held:- dilatory
device and is made malafidely - Rejected.
 (E-6)

## Text

1 All. Baladin And Another Vs. D.D.C. And Others
1053
issue between parties, which is about the
genuineness of the compromise, by which
all those who stand against Risalo, affirm
whereas all those who stand by Risalo,
dispute.
The
Deputy
Director
of
Consolidation, therefore, is required to
determine going by relevant evidence as
to whether the compromise recorded
before him on 24.10.1987 and verified by
him on the said date was genuine or not.
He was not required to go into any other
issue. As such, the impugned order passed
by the Deputy Director of Consolidation
is manifestly illegal, and cannot be
sustained.

20. In the result, this petition
succeeds and is allowed. The impugned
order dated 27.02.1997 by the Deputy
Director of Consolidation in Revision
no.507 is hereby quashed with a remit of
the matter to the Deputy Director of
Consolidation, who will decide the said
revision afresh in accordance with the
guidance in this judgment, within a period
of six months from the date of receipt of a
certified copy of this judgment, after
hearing all parties concerned, including
those who were parties here, in particular,
the Administrator General, U.P., who
represents the estate of Smt. Risalo. Costs
easy.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.07.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - B No. 14352 of 1984

Baladin And Another ...Petitioners
Versus
D.D.C. And Others ...Respondents

Counsel for the Petitioners:
Sri Santosh Kumar, Sri Akhilesh Patel, Sri
Hausila Prasad, Sri Kanhaiya Lal, Sri
Satish Chandra Dwivedi, Sri Satya Prakash
Mishra

Counsel for the Respondents:
S.C., Sri Dhruva Narayan Mishra, Sri
Kamal Srivastava, Sri Shyamji Gaur

A. Article 226 Constitution of India-
Amendment - Writ Petition pending since
1984-Amendment application filed in 2019
at the stage of Final Hearing-Rejected.
Application to postpone final hearing till
disposal of application under order IX rule
13 in O.S No. 355 of 1970. Held:- dilatory
device and is made malafidely - Rejected.
 (E-6)

(Delivered by Hon'ble J.J. Munir, J.)

Order on Civil Misc. Amendment
Application no.26 of 2019

This amendment application has
been made belatedly at a stage when this
writ petition has come up for final
hearing. This writ petition is one of the
year 1984 and this amendment application
has been made in the year 2019.

There is no good ground to
grant this amendment.

This amendment application is
hereby rejected.

It is directed that in cases
listed for final hearing, it shall be the
responsibility of the Section Officer
concerned that there is no application
pending for orders. If there is an
application brought subsequently, in a
final hearing matter, that matter will
not be listed for final hearing, but for
orders first. Any violation from this
direction, will be viewed seriously.

Order on Civil Misc. Application (to
postpone final hearing) no.13 of 2019
1054 INDIAN LAW REPORTS ALLAHABAD SERIES

This is an application made with a
prayer to postpone hearing of the writ petition
till disposal of the application filed by the
petitioners under Order IX, Rule 13 CPC in
Original Suit no.355 of 1970. This application
is prima facie not only a dilatory device in this
petition, which relates to the year 1984, but is
one made mala fide, a fact about which this
Court is convinced.

Learned counsel for the petitioners
has not been able to show anything, on the
basis of which this very old petition may be
adjourned pending decision of a restoration
application in a still older civil suit, somehow
connected to the questions involved in the
present petition; certainly not connected to the
cause of action involved.

This application is rejected.

Order on Writ Petition

1. Heard Sri Kanhaiya Lal, learned
Advocate holding brief of Sri Satish
Chandra Dwivedi, learned counsel for the
petitioners, learned Standing Counsel for
the State and Sri Dhruva Narayan Mishra
for respondent no.4.

2. This writ petition has been filed
challenging an order dated 30.05.1984
passed by the Deputy Director of
Consolidation, Prayagraj (then Allahabad)
in Revision no.44 of 1981, allowing that
Revision, filed by respondents nos.4, 5
&6. The interest of respondent no.6 is
now represented by respondent no.5. The
Revisional Court while doing so, set aside
an appellate order of the Settlement
Officer of Consolidation dated 01.08.1981
passed in Appeal no.88/165/62 and
Appeal no.95/168/177 of 1981, that had,
in turn, affirmed an order of the
Consolidation Officer dated 05.03.1980,
granting mutation in favour of petitioners.
The petitioners' application, thus, stands
rejected by the impugned order dated
30.05.1984 made by the Deputy Director
of Consolidation in Revision.

3. The proceedings giving rise to the
impugned order commenced before the
Consolidation Officer on an application
for mutation made by the original writ
petitioners, Baladin son of Shiv Badal and
Vijai Bahadur son of Sitaram, seeking
mutation of their rights over agricultural
land, comprising Khasra nos.379 and 405,
situate in Village Pasiapur, Pargana &
Tehsil Soraon, District Prayagraj. The
aforesaid mutation application was made
under
Section
12
of
the
U.P.
Consolidation of Holdings Act, and
hereinafter referred to as the Act.

4. The background in which the
aforesaid
proceedings
for
mutation
commenced before the Consolidation
Officer are these: Khasra plot no.379
admeasuring 5 Bigha, 19 Biswa and
Khasra plot no.405 admeasuring 2 Bigha
5 Biswa, totaling an area of 8 Bigha 4
Biswa, said to be a grove situate in
Village Pasiapur, Tehsil Soraon, District
Prayagraj (then Allahabad) were in the
ownership and possession of respondent
nos.7 to 16. On 31st May, 1965, Beni
Prasad
Tandon,
whose
interest
is
represented by respondent nos.7 to 16,
agreed to sell the khasra plots above
detailed (for short the property in dispute)
to the petitioners for a valuable sale
consideration of Rs.3000/-. The owners
are said to have actually sold the property
in dispute for a sum of Rs.3000/- by
means of a registered sale deed, dated
02.10.1965,
executed
in
favour
of
respondent nos.4 to 6. The petitioners
filed Original Suit no.384 of 1965 against
the vendors last mentioned, represented
by respondent nos.7 to 16 here, for
1 All. Baladin And Another Vs. D.D.C. And Others
1055
specific performance of contract, and to
cancel the sale deed executed in favour of
respondent nos.4 to 6. The said suit was
contested separately by respondent nos.4
to 6 and also by respondent nos.7 to 16.
The petitioners' suit after trial was
dismissed by a judgment and decree dated
22.12.1967, whereby the Court while
refusing specific performance, granted a
decree of compensation in the sum of
Rs.2135/-, recoverable from defendants 4
to 9 to the suit by the plaintiff with
pendente lite and future interest at the rate
of Rs.4% per annum. The decree for
compensation, thus, went against the
vendors,
who
are
represented
by
respondent nos.7 to 16.

5. Aggrieved by the aforesaid
decree, two appeals were filed. Civil
Appeal no.251 of 1968 was filed by
vendors, that is to say, predecessors-ininterest, respondent nos.7 to 16, whereas
Civil Appeal no.70 of 1968 was filed by
the petitioners. The petitioners filed the
Appeal against that part of the decree of
the Trial Court, by which the specific
performance of contract was refused,
whereas respondent nos.7 to 16 appealed
from that part of the decree by which they
were ordered to pay Rs.2135/-, in
compensation to the petitioners. The
aforesaid
appeals
came
up
for
determination before the Civil Judge,
Allahabad [now Civil Judge (Sr. Div.)] on
28th October, 1968. The Appellate Court
allowed both appeals, setting aside the
decree, ordering the vendors to pay
compensation to the petitioners, and at the
same time, the part of the decree by which
specific performance was refused to the
petitioners was reversed, and the vendors
were ordered to execute a sale deed
relating to the property in dispute in
favour of the petitioners, super-added
with a direction that the decree holder
would have to pay Rs.1000/- to the
vendor, over and above the contracted
price. Respondents nos.4, 5 & 6, who
were defendants nos.1 to 3 to the suit
were also directed to be joined in the
execution of the sale deed, in order to
pass an unimpeachable title.

6. Aggrieved by the appellate
decree, a second appeal being Second
Appeal no.3282 of 1968 was filed to this
Court, which came up for hearing on
08.01.1970. The second appeal was
dismissed and the decree made by the
First Appellate Court was upheld. The
decree for specific performance was
executed by the Court of first instance,
acting as the Executing Court, and a sale
deed relating to the property in dispute
was executed in favour of the petitioners
on behalf of the vendors, that is to say,
respondent nos.7 to 16, that was duly
admitted to registration after execution by
the learned Civil Judge on 22.07.1970.
Respondents nos.4 to 6 thereupon filed
Original Suit no.355 of 1970, that is to
say, soon after execution of the decree of
specific performance, in the Court of
Munsif,
East,
Allahabad,
seeking
declaration to the effect that the decree
passed in Original Suit no.384 of 1965 is
illegal and void, and all proceedings in
execution of the said decree be also
declared
void,
together
with
their
consequences.

7. It appears that the said suit was
initially contested, at least upto time when
the interim injunction application was
heard and rejectedvide order
dated
13.10.1970, passed by the First Additional
Munisif, Allahabad, vacating the earlier ex
parte interim injunction order dated
22.08.1970. It also figures in the sequence
1056 INDIAN LAW REPORTS ALLAHABAD SERIES
of events in the history of litigation
between parties that post execution of the
sale deed, an application for execution,
may be a further application, was made to
the Court of first instance, seeking delivery
of possession of the property in dispute. In
the said execution case, that was numbered
on the file of the Executing Court as
Execution Case no.55 of 1970, Respondent
no.4 filed objections under Order XXI
Rule 29 CPC on ground that the petitioners
had no knowledge of Suit no.384 of 1965,
or had any notice served upon them. It was
further pleaded that no proper guardian
was appointed for respondent nos.4 to 6,
all of whom were minors at that time, and,
as such, the petitioners could not be given
possession over the property in dispute, in
execution of the decree passed in Original
Suit no.384 of 1965. The said objections
filed by respondent no.4 were contested by
the petitioners
and the learned
Ist
Additional Munsif, before whom these
objections
came
up,
dismissed
the
objections filed by respondent no.4 vide
order dated 19.08.1971. It is pointed out
that respondent no.4 had also filed
objections under Section 47 of the CPC,
may be raising pleas more or less to the
same effect. The said objections were also
dismissed by the Executing Court.

8. It is the case of the petitioners that
the petitioners made an application in the
execution case for the appointment of a
Commissioner, to effect delivery of
possession of the property in dispute to the
decree holder, petitioners. Respondent no.4
also filed an application in the execution
case to set aside the execution. Both the
applications were heard together and
disposed of by the learned Munsif by his
order dated 12.04.1973. The learned
Munsif, by the aforesaid order, rejected
applications made by both the respondents,
and allowed the petitioners' application,
appointing one Sri R.D. Srivastava as
Commissioner to deliver possession of the
property in dispute, in execution of the
decree passed in Original Suit no.384 of
1965. It is the petitioners' case that
pursuant to the order dated 12.04.1973
passed by the learned Munsif, the
Advocate
Commissioner
delivered
possession over the property in dispute to
the
petitioners
on
14.04.1973,
and
submitted his report to that effect. It is also
alleged that on receipt of the report, the
learned
Munsif
passed
orders
on
28.04.1973, striking off the execution case
in full satisfaction. The aforesaid fact has
been emphatically disputed by the fourth
respondent in paragraph 16 of his counter
affidavit dated 08.04.1985. The fourth
respondent has emphatically denied the
fact that possession of the property in
dispute was ever delivered by the
Commissioner to the petitioners. It is
submitted that the entire proceedings of the
Commissioner, on the basis of which the
learned Munsif struck off the execution
case in full satisfaction, was a got up
report, that was drawn up sitting back in
the office. There appears to be some
further proceedings before the Munsif as
there was some inaccuracy alleged in plot
numbers, regarding which some further
report was submitted by the Advocate
Commissioner on 22.05.1973. The suit that
was instituted by respondent no.4 in the
year 1970, had for its basis the essential
fact, that the transaction leading to the
contract that culminated in the decree for
specific performance of contract passed in
Original Suit no.384 of 1965, was entered
on behalf of respondent nos.4 to 6 by an
uncle of respondent no.4, Ram Pati and
father of respondent nos.5 & 6, as the
fourth respondent was a minor, and so
were respondent nos.5 & 6.
1 All. Baladin And Another Vs. D.D.C. And Others
1057

9. It is pointed out by the
petitioners that Ram Pati was appointed
next friend of respondent no.4 as he was
present in Court, whereas respondent
no.4 says that these proceedings were
fraudulently
taken,
deriving
unfair
advantage of his minority. This is
particularly so, as urged on behalf of the
fourth respondent that his mother was
alive at that time and she was his natural
guardian, who was not served with any
notice to serve as his next friend in the
suit, and not Ram Pati, his uncle. He,
therefore, assailed the entire contract
and the transfer of his right in the
property in dispute, as one beset by the
fraud, as the man acting as his next
friend during minority, did not defend
his interest and colluded with the
plaintiffs of that suit. The fourth
respondent has stoutly condemned the
entire proceedings of Original Suit
no.384 of 1965 as one vitiated by fraud,
including those that were taken in
execution.

10. This Court does not intend to say
one way or the other, that indeed, the
proceedings of the suit that culminated in
the second appeal, and the orders of the
Executing Court were fraudulent. What
this Court finds is that the learned Munsif,
before whom, the fourth respondent filed
a suit for a declaration that the entire
proceedings of suit no.384 of 1965 were
illegal and void, and further that all
proceedings taken in execution of the said
decree, were void, was decreed ex parte
vide
judgment
and
decree
dated
16.03.1981
passed
by
the
VIIIth
Additional Munsif, Allahabad in Original
Suit no.355 of 1970. The said ex parte
decree has never been set aside, and is
still in force. No doubt, the petitioners
have made efforts to get the said decree
set aside and an Application under Order
IX Rule 13 CPC, has been filed on
19.03.1981. The said application was
registered as Misc. Case no.10/1981,
which came to be rejected by the Trial
Court vide order dated 10.02.1984.

11. Aggrieved, Misc. Appeal no.43
of 1984 was filed under Order 43 Rule
1(r) CPC before the District Judge. The
learned District Judge dismissed the
appeal on 18.12.1985. The petitioners,
thereafter, filed a review application to
the District Judge in Misc. Civil Appeal
no.43 of 1984. The review application
was dismissed on 09.04.1986 by the
learned
District
Judge,
Allahabad.
Challenging these orders, the petitioners
filed Writ - C No.8571 of 1986
questioning the orders of the Trial Court,
dated 10.02.1984, rejecting his restoration
application and those of the District Judge
in Appeal affirming it. The aforesaid writ
petition was allowed on 29.11.2012 and
all the three orders were quashed, with a
remit of the matter to the Trial Court to
decide the suit afresh, within a period of
six months. It appears that what this Court
actually meant was a decision of the
Application under Order IX, Rule 13
CPC, but the order passed by this Court
led to a situation where the Civil Judge
(Jr. Div.), Sharki, Allahabad, without
disposing of the Application under Order
IX Rule 13 CPC proceeded with the trial
of Suit no.355 of 1970. Finding these not
to be intendment of this Court, the fourth
respondent made an application before the
learned Civil Judge (Jr. Div.) aforesaid,
requesting the Court to seek a clarification
of
the
judgment
and
order
dated
29.11.2012 passed by this Court in Writ -
C No.8571 of 1986. The Civil Judge
rejected the said application, which led
the fourth respondent to file a petition
1058 INDIAN LAW REPORTS ALLAHABAD SERIES
under Article 227 of the Constitution to
this Court challenging the order of the
learned
Civil
Judge,
rejecting
his
application to seek a clarification, and the
course of action adopted in proceedings
with the suit, instead of deciding the
Application under Order IX Rule 13 CPC,
in the first instance.

12. This Court thereupon proceeded
to dispose of the petition aforesaid, by an
order on agreement of counsel appearing
for both sides, the relevant part of which
is extracted from the said order dated 2nd
January, 2019, passed in Matter under
Article 227 no.1640 of 2015, which reads
as under:

"Both
the
counsels
are
agreeable to the position which is
reflected from the order dated 29.11.2012
as corrected on 19.12.2012, that this
Court has set aside the orders of rejection
of the application under Order IX, Rule
13 C.P.C. and the orders passed in appeal
filed against the rejection order as also
the
order
passed
on
the
review
application, but the exparte decree dated
16.3.1981 has not been set aside as on
date and is intact. The result is that the
application under Order IX, Rule 13
C.P.C. filed by the defendant/respondents
no. 1 and 2 stood revived and is pending
disposal before the court below.

For the said fact, this Court
does not find any reason to direct the
parties to seek further clarification of the
order dated 29.11.2012 as corrected on
19.12.2012.

The
present
petition
is,
accordingly, being disposed of with
the direction to the court below i.e.
the Civil Judge (Junior Division)
Sharki, Allahabad to proceed for
disposal of the application under
Order IX, Rule 13 C.P.C. namely
'Paper No. 3-Ga' pending in Original
Suit No. 355 of 1970, expeditiously
preferably, within a period of three
months from the date of submission
of certified copy of this order.

It is made clear that the
court below shall not proceed with
the Original Suit No. 355 of 1970 on
merits
until
disposal
of
the
application under Order IX, Rule 13
C.P.C. as directed herein above,
inasmuch as, further continuation of
Original Suit No. 355 of 1970 would
depend upon the order passed on the
application under Order IX, Rule 13
C.P.C.

The court below shall further
not grant any unnecessary adjournment to
any of the parties in disposal of
application 3-Ga under Order IX, Rule 13
C.P.C. within the time given above."

13. The aforesaid order of this Court
has placed matters beyond cavil that the
petitioners' application under Order IX
Rule 13 CPC is still pending, and it is not
the petitioners' case, that it has been
disposed of till date.

14. Sri Kanhaiya Lal, learned
Advocate holding brief of Sri Satish
Chandra Dwivedi, learned counsel for the
petitioners does not dispute this fact that
till date the Application under Order IX
Rule 13 CPC is pending in Original Suit
no.355 of 1970, and the ex parte decree
passed way back on 16.03.1981, is still
operating. It is quite another matter that
this application may be allowed, at some
point of time, may be in the near future,
which may alter the rights of the parties,
but as the parties' rights stand, the entire
decree passed in Original Suit no.384 of
1965, that has been upheld in Second
1 All. Munni Lal And Others Vs. Board of Revenue and Others
1059
Appeal by this Court, has been held to be
inoperative and illegal. The ex parte
decree dated 16.03.1981, passed in
Original Suit no.355 of 1970 reads as
under:

"िमिी कम िमि प्रभतिमिीगण के भिरुद्ध एकपक्षीय
रूप से एकपक्षीयcost सभहत भडक्री भकयम जमतम है। िमि सां०384
सन्1965 में िमिी के भिरुद्ध पमररत की गयी भडक्रीयमाँ अिैिमभनक
और प्रिमिहीन घोभषत की जमती है।"

15. Now, the application for
mutation out of which these proceedings
arise has been moved on the foot of the
decree passed in Original Suit no.384 of
1965, and all subsequent proceedings
arising out of the said decree, including
execution. Once the decree passed in the
said suit, and resultantly all consequential
proceedings are rendered void by dint of
ex parte decree dated 16.03.1981 passed
in suit no.355 of 1970, no rights based on
the decree passed in Original Suit no.384
of 1965, or any consequential proceedings
can be claimed by the petitioners,
including the right to mutation of their
names in the revenue records. The Deputy
Director of Consolidation, Parayagraj
(then
Allahabad),
therefore,
rightly
construed the rights of the parties to
mutation of their names by proceeding on
the basis of the ex parte decree dated
16.03.1981 passed in Original Suit no.355
of 1970, and rightly reversed the orders
granting mutation in favour of the
petitioners under Section 12, based on a
decree that has now been held inoperative
and illegal, by means of the ex parte
decree
dated
16.03.1981
passed
in
Original Suit no.355 of 1970.

16. The position of law about an ex
parte decree is clear that so long as an ex
parte decree remains intact, it is as much a
decree as one on merits. It carries the
same force. In this connection, it may be
gainful to refer to the decision of the
Supreme Court in Vijay Singh v. Shanti
Devi, (2017) 8 SCC 837, where their
Lordships have held:

"12. ............ There is no manner
of doubt that an ex parte decree is also a
valid decree. It has the same force as a
decree which is passed on contest. As
long as the ex parte decree is not recalled
or set aside, it is legal and binding upon
the parties."

17. It goes without saying that if the
decree dated 16.03.1981 is set aside in any
competent
proceedings,
including
the
pending Application under Order IX Rule 13
CPC, the petitioners' right to seek mutation
or to the restoration of their mutation, if
already made would revive. But as of date,
till the decree passed in Original Suit no.355
of 1970, remains operative, no fault can be
found with the impugned order passed by the
Deputy Director of Consolidation, declining
to grant mutation in favour of the petitioners,
reversing the two authorities below, who
granted mutation in favour of the petitioners.

18. In the result, there is no force in this
petition. It stands dismissed. Costs easy.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.07.2019

BEFORE
THE HON'BLE J.J. MUNIR, J.

Writ - B No. 502 of 1994

Munni Lal And Others ...Petitioners
Versus
Board of Revenue and Others
 ...Respondents