# Chand Chaturvedi and another v. Joint

- **Citation:** (2013) 1 ILRA 100
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-01-03
- **Case number:** Civil Misc. Writ Petition No. 47864 of 2000
- **Bench:** B. Amit Sthalekar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/chand-chaturvedi-and-another-v-joint-42459
- **Pages:** 4

## Headnote

Code of Civil Procedure, Order 9 Rule 13application for setting-a-side ex-parte
decree-when the suit decreed ex-parteappeal
dismissed
on merit-held-Trail
Court wrongly entertain-such application
-held-order
without
jurisdictionapplication
seeking
restoration
of
proceeding itself nor maintainable.

Held: Para-9 and 10

From a perusal of the impugned order
and documents on record as well as the
statutory provisions of the Explanation
to Order 9, Rule 13 CPC, it is noticed that
once
the
appeal
preferred
by
the
respondent nos.1 and 4 against the
decree
dated
11.8.1995
had
been
dismissed by the judgment and order
dated
23.4.1998,
the
decree
dated
11.8.1995 had become final between the
parties and, thereafter, no application
seeking recall or restoration of the said
decree was maintainable before the trial
court. Matter had already been thrashed
out upto the stage of appeal.

In
the
circumstances,
the
entire
proceedings seeking restoration of the
1 All] Mohd. Rais V. State of U.P. & others
101
suit proceedings and for setting aside
the
decree
dated
11.8.1995
were
absolutely without jurisdiction and were
not maintainable.

## Text

100 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

20. It would further appear from the
spot memo and finding recorded by the
DDC, the petitioner's chak was falling in
the midst of chak of respondent nos. 3
and 4, therefore, the petitioner has been
shifted at a corner. It is not the case of
the petitioner that either his area has
been reduced or he has been allotted
chak at a land of excess valuation or
upon a bad quality of land, therefore, the
decision in the Mohd. Nabi (supra) case
is at no help as in that case, the reason
was not recorded while changing the
chak and the order was cryptic. Here in
the present case, valid reason has been
recorded by the DDC in support of his
order.

21. So far as the case of Fateh
Chand Chaturvedi and another Vs.
Joint
Director
of
Consolidation,
Allahabad and Others 2007(102) RD
171 is concerned, in this case the
argument was that the petitioner was
given chak over an area having excess
valuation (land) in the plots which were
situated near the river (nadihar) and in
that context, the Court has inferred with
the matter and quashed such allotment.
This case is also distinguishable on the
facts.

22. In view of the foregoing
discussions, I do not find any illegality in
the judgment and order dated 26.4.2012
passed by the Deputy Director of
Consolidation.

23. The writ petition fails and it is
hereby dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.01.2013

BEFORE
THE HON'BLE B. AMIT STHALEKAR, J.

Civil Misc. Writ Petition No. 47864 of 2000

Mohd. Rais

 ...Petitioner
Versus
State of U.P. & others ...Respondents

Counsel for the Petitioner:
Sri Ram Lal Singh
Sri Sheo Ram Singh
Sri Shashank Shekhar

Counsel for the Respondents:
C.S.C.
Sri V.K. Singh

Code of Civil Procedure, Order 9 Rule 13application for setting-a-side ex-parte
decree-when the suit decreed ex-parteappeal
dismissed
on merit-held-Trail
Court wrongly entertain-such application
-held-order
without
jurisdictionapplication
seeking
restoration
of
proceeding itself nor maintainable.

Held: Para-9 and 10

From a perusal of the impugned order
and documents on record as well as the
statutory provisions of the Explanation
to Order 9, Rule 13 CPC, it is noticed that
once
the
appeal
preferred
by
the
respondent nos.1 and 4 against the
decree
dated
11.8.1995
had
been
dismissed by the judgment and order
dated
23.4.1998,
the
decree
dated
11.8.1995 had become final between the
parties and, thereafter, no application
seeking recall or restoration of the said
decree was maintainable before the trial
court. Matter had already been thrashed
out upto the stage of appeal.

In
the
circumstances,
the
entire
proceedings seeking restoration of the
1 All] Mohd. Rais V. State of U.P. & others
101
suit proceedings and for setting aside
the
decree
dated
11.8.1995
were
absolutely without jurisdiction and were
not maintainable.

(Delivered by Hon'ble B. Amit Sthalekar, J.)

1. Rejoinder affidavit filed by learned
counsel for the petitioner is taken on record.

2. By this writ petition the petitioner is
challenging the order dated 16.9.2000
passed by the Sub Divisional Officer,
Manjhanpur, District Kaushambi by which
the Restoration Application filed by the
respondent no.4, the Gaon Sabha, Babura
Kaushambi was entertained and the stay
order was passed and the operation of the
decree dated 11.8.1995 was stayed. By the
impugned order dated 3.10.2000 revision
filed by the petitioner against the order
dated 16.9.2000 has also been rejected.

3. The facts of the case, in brief, are
that the petitioner is stated to be the owner
in possession over the plot nos.207,393,22/5
and 305 situated in village Manjhanpur,
Tehsil Manjhanpur, District Kaushambi on
the basis of the lease executed by the then
Zamindar.
The
proceedings
for
consolidation under Section 4 of the U.P.
Consolidation of Holdings Act were
initiated in the said village. The petitioner
filed an objection under Section 9A (2) for
the declaration of the Bhumidhari rights
over
the
disputed
plots
before
the
Consolidation Officer, Manjhanpur. The
Gaon Sabha appeared in the proceedings for
contesting the objections. The objection of
the petitioner was allowed and he was
declared Bhumidhar of the disputed plots by
the jugdment and order dated 5.4.1982. It is
also stated that the order dated 5.4.1982
became final between the parties inasmuch
as the same was never challenged by the
Gaon Sabha or by the State Government.
However, due to fault of the officials the
order
dated
5.4.1982
could
not
be
incorporated in the revenue records and,
therefore, when the village was notified
under Section 52 of the U.P. Consolidation
of Holdings Act. The plots in question
continued to be shown in the ownership of
the Gaon Sabha, respondent no.4. In the
consolidation proceedings the plots in
question were renumbered as plot nos.
318/348/159 and 403.

4. When the land continued to be
shown in the name of the Gaon Sabha in
spite of the order dated 5.4.1982, the
petitioner filed suit for declaration under
Section 229-B of the U.P. Zamindari
Abolition and Land Reforms Act in which
the State of U.P. and the Gaon Sabha were
impleaded as defendants. It is stated that
respondents
also
filed
their
written
statement. Trial court after hearing the
parties decreed the petitioner's suit and
declared him to be the Bhumidhar of the
plot in question by judgment and order
dated 11.8.1995. Aggrieved by the said
judgement an appeal was filed by the
Collector, Kaushmbi as well as the Gaon
Sabha
before
respondent
no.2,
the
Additional
Commissioner,
Allahabad
Division, Allahabad. This appeal was
dismissed by the judgment and order dated
23.4.1998 and thus the decree dated
11.8.1995 stood confirmed. This judgment
dated 23.4.1998 was never challenged by
the State Government or by the Gaon Sabha
and the decree dated 11.8.1995 thus became
final between the parties.

5. However, subsequently it is alleged
that respondents were trying to oust the
petitioner from the plots in question.
Therefore, the petitioner filed a Writ
Petition no.32750 of 2000, Mohd. Rais vs.
State of U.P. and others in which counter
102 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
affidavit was called and the writ petition is
stated to be still pending. However, the
Gaon Sabha moved an application on
14.9.2000 under Order 9 Rule 13 C.P.C. for
setting aside the decree dated 11.8.1995
along with a stay application. This
application was allowed by the respondent
no.3, Sub Divisional Officer, Manjhanpur,
District Kaushambi by the impugned order
dated 16.9.2000 without issuing notice to
the petitioner and an injunction was also
granted. When the petitioner came to know
about the said order he preferred a revision
before
the
Additional
Commissioner,
Allahabad Division, Allahabad, which was
dismissed by the impugned order dated
3.10.2000. Hence the present writ petition.

6. I have heard Sri Sheo Ram Singh,
learned counsel for the petitioner and Sri
Mata Prasad, learned Additional Chief
Standing
Counsel
appearing
for
the
respondents.

7. The submission of learned counsel
for the petitioner is that once the decree
dated 11.8.1995 had become final between
the parties inasmuch as the appeal preferred
by the respondent no.4 had been dismissed
by the Additional Commissioner, Allahabad
Division, Allahabad dated 23.4.1998, which
was never challenged by the respondent
nos.1 and 4, thereafter no application for
recall of the decree dated 11.8.1995 was
maintainable. Learned standing counsel
submitted that decree dated 11.8.1995 was
ex parte, therefore, recall application was
maintainable.

8. Order 9, Rule 13 CPC and the
explanation thereto reads as follows:-

"R.13. Setting aside decree ex parte
against defendant.- In any case in which a
decree is passed ex parte against a
defendant, he may apply to the Court by
which the decree was passed for an order to
set it aside; and if he satisfies the Court that
the summons was not duly served, or that he
was prevented by any sufficient cause from
appearing when the suit was called on for
hearing, the Court shall make an order
setting aside the decree as against him upon
such terms as to costs, payment into Court
or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

Provided........

Provided further...........

[Explanation.- Where there has been
an appeal against a decree passed ex parte
under this rule, and the appeal has been
disposed of on any ground other than the
ground that the appellant has withdrawn
the appeal, no application shall lie under
this rule for setting aside that ex parte
decree.]

9. From a perusal of the impugned
order and documents on record as well as
the statutory provisions of the Explanation
to Order 9, Rule 13 CPC, it is noticed that
once the appeal preferred by the respondent
nos.1 and 4 against the decree dated
11.8.1995 had been dismissed by the
judgment and order dated 23.4.1998, the
decree dated 11.8.1995 had become final
between the parties and, thereafter, no
application seeking recall or restoration of
the said decree was maintainable before the
trial court. Matter had already been thrashed
out upto the stage of appeal.

10. In the circumstances, the entire
proceedings seeking restoration of the suit
proceedings and for setting aside the decree
dated 11.8.1995 were absolutely without
jurisdiction and were not maintainable.
1 All] Atar Singh V. State of U.P. & others
103

11. In the circumstances, the writ
petition deserves to be allowed and is
accordingly allowed. The impugned orders
dated 16.9.2000 and 3.10.2000 are quashed.
The restoration proceedings before the
respondent no.3 on the application dated
14.9.2000 are quashed

12. There shall be no order as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.12.2012

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 52664 of 2004

Atar Singh

 ...Petitioner
Versus
State of U.P. And others ...Respondents

Counsel for the Petitioner:
Sri Vivek Dubey
Sri A.K. Upadhyay
Sri Kamal Kishore Mishra
Sri Jitendra Kr. Sharma
Sri K.K. Mishra
Sri Vivek Chaubey
Sri Om Vikas Chaudhary
Sri Vinay Dubey

Counsel for the Respondents:
C.S.C.
Sri A.K. Rai
Sri Ashok Kumar Srivastava
Sri Rahul Sahai
Sri S. Chaturvedi

U.P.
Zamindari
Abolition
and
Land
Reforms Rule 1952 Rule 279, 284
readwith 282 of Civil Procedure Code,
Section 54-auction sale of land without
Munadi
without
publication-without
valuation of property without taking
resource to procedure-entire proceeding
of auction limited to non observance of
mandatory provision contained in the
rule-auction quashed.

Held: Para-30 and 33

Here in this case, as we have noticed
that the required munadi and required
valuation of the property before holding
auction proceedings have not been done,
as required under the Act and Rules and
these things go to the root of the matter,
therefore, non-observance of that would
vitiate the entire sale proceedings as the
provisions contained under the Act and
Rules relating to the auction of land for
arrears of land revenue are mandatory in
nature and non-observance of the same
would render the proceeding void.

Here in the present case, no munadi /
publication was made, no valuation was
fixed as required under Rule 283 of the
Rules and without taking recourse as
contained in condition nos. (a), (b) and
(c) of section 279 of the Act the land has
been auctioned on the consideration of
Rs. 1,08,000/-, which would go to
establish that a valuable land was
auctioned by the respondents without
taking
recourse
to
procedure
as
contained under the Act and the Rules,
therefore,
the
entire
proceeding
of
auction is vitiated and the same deserves
to be quashed.

(Delivered by Hon'ble Ran Vijai Singh, J.)

1. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari, quashing the auction proceedings
dated 13.9.2004, auctioning the petitioner's
valuable land measuring about 0.650
hectare for an amount of Rs. 1,08,000/- in
favour of respondent no. 6.

2. Heard Sri Kamal Kishore Mishra,
learned counsel for the petitioner, learned
Standing Counsel and Sri Ashok Kumar