# Dalveer Singh Revisionist v. State of U.P. & Ors. Opp. Parties

- **Citation:** (2021) 2 ILRA 680
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-10-24
- **Case number:** Civil Revision No. 31 of 2020
- **Bench:** Jaspreet Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dalveer-singh-revisionist-v-state-of-u-p-ors-opp-parties-46863
- **Pages:** 10

## Headnote

A. Code of Civil Procedure,1908-Section
80(1)-Where section 80(2) C.P.C. provides
that even though if the leave is granted
yet no interim relief will be granted
without hearing the State-respondents-in
the instant case the leave had been
refused-the plaintiff preferred the instant
revision and the interim order was passed
2 All. Dalveer Singh Vs. State of U.P. & Ors.
681
without notice to the State-respondentsprior to the grant of leave, the suit itself is
not before the Court hence, in absence of
suit, there was no occasion to pass any
order much less an interim order-the court
grants leave to the revisionist to institute
the suit without complying with the
provision of section 80(1) C.P.C.(Para 34
to 37)

The revision is allowed. (E-5)

List of Cases cited:

## Text

680 INDIAN LAW REPORTS ALLAHABAD SERIES
the Official Gazette, i.e. 12.02.2020, cannot
be given retrospective effect. The intention
of Government of India to make the 2020
Rules prospective is very clear from the
notification dated 12.02.2020. In any event,
subordinate legislation cannot be given
retrospective effect unless the parent statute
specifically provides for the same."

He
submits,
undisputedly,
the
proposed
arbitrator
was
appointed
Presiding Officer of the SAT before
enforcement of the aforesaid Rules on
12.02.2020. Therefore, those Rules do not
apply to him. There is no legal impediment
found to be existing in his continuance as
an arbitrator.

35. In view of such facts, the
objection raised by Sri Tripathi is found to
be lacking in force. Neither on ground of
legality nor of propriety, the learned
proposed arbitrator is inconvenienced.
There being no other objection, the order
dated 24.10.2019 is confirmed, as above.

36. Accordingly, Mr. Justice Tarun
Agarwala,
Chief
Justice
(Retired),
Meghalaya High Court, residing at
Delhi/NCR: A-5, Sector 14, NOIDA, Tel.
(0120) 2510066, 1515596 (Mob. No.
9415307976, 7705007976), is appointed
the arbitrator to enter upon the reference
and adjudicate the dispute in accordance
with the provisions of Arbitration and
Conciliation Act, 1996.

37. The arbitrator shall be entitled to
fees and expenses, in accordance with the
provisions of the Fourth Schedule inserted
by Act No.3 of 2016.

38.

Accordingly,
the
present
application under Section 11 of the Act
thus, stands allowed.

Case
:-
ARBITRATION
AND
CONCILI. APPL.U/S11(4) No. - 68 of
2019

Applicant :- Tata Projects Ltd.

Opposite Party :- Central Organization
Far Railway Electrification

Counsel
for Applicant
:-
Rahul
Agarwal

Counsel for Opposite Party :- Navneet
Chandra Tripathi

Hon'ble Saumitra Dayal Singh,J.

Re: Civil Misc. Application No. 6 of
2020

For the reasons contained in the order
of the same date passed in Arbitration and
Conciliation Application U/S 11(4) No. 68
of 2019, the present application stands
disposed of.
----------
(2021)02ILR A680
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.02.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Civil Revision No. 31 of 2020

Dalveer Singh ...Revisionist
Versus
State of U.P. & Ors. ...Opp. Parties

Counsel for the Revisionist:
Avadhesh Kumar, Samarth Saxena

Counsel for the Opp. Parties:
Sarvesh Kumar Dubey

A. Code of Civil Procedure,1908-Section
80(1)-Where section 80(2) C.P.C. provides
that even though if the leave is granted
yet no interim relief will be granted
without hearing the State-respondents-in
the instant case the leave had been
refused-the plaintiff preferred the instant
revision and the interim order was passed
2 All. Dalveer Singh Vs. State of U.P. & Ors.
681
without notice to the State-respondentsprior to the grant of leave, the suit itself is
not before the Court hence, in absence of
suit, there was no occasion to pass any
order much less an interim order-the court
grants leave to the revisionist to institute
the suit without complying with the
provision of section 80(1) C.P.C.(Para 34
to 37)

The revision is allowed. (E-5)

List of Cases cited:

1. St. of A.P. & ors. Vs Pioneer Builder A.P.
(2006) 12 SCC 119

2. St. of Ker. & ors. Vs Sudhir Kumar Sharma &
ors. (2013) 10 SCC 178

(Delivered by Hon'ble Jaspreet Singh, J.)

1. Heard Sri Samarth Saxena, learned
counsel for the revisionist and the learned
Standing Counsel for the State-respondents.
Sri Vivek Raj Singh, learned Senior
Counsel assisted by Sri Shantanu Sharma
and Ms. Anantika Singh for respondent no.
4.

2. The instant Civil Revision has been
preferred under Section 115 C.P.C. against
the order dated 15.07.2020 passed in Misc.
Case No. 133 of 2020 by Civil Judge,
Senior Division, Lakhimpur Kheri whereby
the leave to institute the Suit as prayed by
the revisionist under Section 80 (2) of the
C.P.C. was refused.

3. Briefly, the facts giving rise to the
above civil revision are being noticed first:-

4. The revisionist as plaintiff before
the Court of Civil Judge, Senior Division,
Lakhimpur Kheri had filed an application
under Section 80 (2) C.P.C. along with the
copy of the proposed plaint seeking leave
of the Court to institute the suit without
serving the notice on the State-respondents
as provided under Section 80 (1) C.P.C.

5. The averments as disclosed in the
plaint are that the revisionist has been a
lessee of the disputed land in question. The
aforesaid land, the details of which were
mentioned in paragraph 1 of the proposed
plaint, copy of which has been brought on
record as Annexure No. 6 with the memo of
revision,
the
same
vested
with
Sri
Rajagopal Mandir Trust situate in District
Lakhimpur Kheri along with many other
properties. Since there was a dispute in
respect of the properties belonging to the
aforesaid trust, hence, in Regular Civil
Appeal No. 64 of 2016 pending before this
High Court at Lucknow, as an interim
measure the Court had appointed the Chief
Secretary, Department of Religious Affairs,
State of U.P. as the Receiver. In furtherance
thereof the SDM, Lakhimpur Kheri was
appointed to look after the properties and
was also entitled to receive the rent in
respect of the properties which were leased
out to various persons. In the aforesaid
backdrop, 25.44 acres of the land belonging
to the Trust was leased out to the revisionist
for which he was paying Rs. 14,000/- per
acre as lease rent. The aforesaid lease was
on yearly basis commencing from the 1st of
July till 30th of June of each year.

6. It was stated that the Staterespondents had attempted to dispossess the
revisionist some time in the year 2017 and
a notice was sent by the revisionist in reply
whereof the SDM had admitted the
revisionist to be a lessee and also accepted
the rent from him.

7. The cause of action for the instant
suit was mentioned in Paragraph 9 of the
proposed plaint wherein it was stated that
the defendant no. 1 of the suit namely
682 INDIAN LAW REPORTS ALLAHABAD SERIES
SDM, Lakhimpur Kheri on 02.07.2017
stated that now the plaintiff/revisionist
would be given only 12.5 acres of land and
the other part would be measured and
separated which shall be leased out to some
other person. The aforesaid act was not
within the domain of the S.D.M. and since
he was attempting to dispossess the
plaintiff in the aforesaid circumstances, the
suit for permanent injunction was sought to
be filed.

8. The application under Section 80 (2)
C.P.C. along with the proposed plaint was filed
on 04.07.2020 in the Court of Civil Judge,
Senior Division, Lakhimpur Kheri registered as
Misc. Case No. 133 of 2020. Upon the said
application, notice was issued to the State
authorities who filed their objections on
14.07.2020, a copy of which has been brought
on record as Annexure No. 8.

9. Referring to the said objections, the
learned counsel for the revisionist submits that
in paragraph 5 it was pleaded that the plaintiff
had not impleaded the District Magistrate nor
the Chief Secretary, Religious Affairs, State of
U.P. as a party. For the aforesaid non-joinder of
parties, the application under Section 80 (2) was
liable to be rejected. However, in paragraph 6 of
their objection the State-respondents stated that
the lease period of the plaintiff was uptil June,
2020 which had expired. The possession from
the plaintiff has been taken and has been given
to some other persons on twice the lease rent
which was being paid by the plaintiff and since
the plaintiff has not mentioned the aforesaid
facts
rather
has
concealed
the
same,
consequently, no leave as provided under
Section 80 (2) C.P.C. could be granted.

10. It is submitted by the learned counsel
for the revisionist that in the aforesaid backdrop
the Trial Court has committed a jurisdictional
error in rejecting the application of the
revisionist on the ground that since the property
in question belonged to the Trust and that the
High Court in First Appeal No. 64 of 2016 had
appointed the Chief Secretary, Department of
Religious Affairs, State of U.P. as a
caretaker/receiver and as the SDM was
exercising delegated powers, hence, without
impleading the appropriate party and for the
reason that the plaint did not disclose that any
leave was granted by the High Court to institute
the suit, hence, there did not appear to be any
urgency in the matter, consequently, the
application has been rejected.

11. It is further stated that the only issue
before the Court was regarding the urgency
which was specifically pointed out that the
plaintiff was in possession and his possession
was being disturbed by the State-respondents
which required to be protected and this urgency
was sufficient for the Court to have dispensed
with the requirement of Notice under Section
80 (1) C.P.C. and this aspect of the matter not
having been considered rather the Court below
has been swayed by irrelevant consideration
and has committed a jurisdictional error.

12. The learned Standing Counsel
appearing for the State-respondents submits
that the Trial Court was justified in
rejecting the application under Section 80
(2)
C.P.C.
as
the
plaint
was
not
appropriately framed and it suffered from
the vice of non-joinder of necessary parties.
Since as already indicated in the objections
that the possession had been taken from the
plaintiff, accordingly, there was no urgency
in the matter and the Trial Court has not
committed any error rather it has exercised
its jurisdiction appropriately and the
revision for the aforesaid reason deserves
to be dismissed.

13. Sri V.R. Singh, learned Senior
Counsel assisted by Sri Shantanu Sharma
2 All. Dalveer Singh Vs. State of U.P. & Ors.
683
has urged that the revisionist has not
approached the Court with clean hands,
inasmuch as, by means of the order dated
31.08.2020, this Court had directed the
aforesaid revision to be connected with
First Appeal No. 64 of 2016.

14. Be that as it may, nothing further
transpired, however, the revisionist made
an application bearing C.M.A. No. 52619
of 2020 seeking interim relief, the copy of
the said application was not served on the
State-respondents and upon the averments
made by the revisionist that he had
deposited
the
rent
in
question
till
30.06.2020 and the SDM is deliberately not
accepting the rent only to artificially create
the default and moreover the crop of the
revisionist was standing over the land in
question
and
in
the
aforesaid
circumstances, the revisionist sought the
protection that his crop may be protected
from destruction.

15. It is in this view of the matter that
on 06.10.2020 as an interim measure, this
Court provided that in case the revisionist
deposited rent up to date including all
arrears within a period of 10 days from
today then the respondents shall not
interfere and shall not destroy the standing
crop on the property in question.

16. It is submitted by the learned
Senior Counsel that taking the benefit of
the order though the petitioner had been
dispossessed yet on the strength of the said
order, he again trespassed over the land
which
had
been
leased
out
w.e.f.
01.07.2020 to the private respondent no. 4
and who had also sown his crop. In this
fashion, the revisionist has misused the
order and has also stated incorrect facts.
The private respondent has also made an
application under Section 340 Cr.P.C. and
has impressed upon the Court that once the
lease of the revisionist had expired and the
private respondent had been granted lease
on 01.07.2020, these facts were concealed
by the revisionist when he moved an
application under Section 80 (2) C.P.C.
along with the proposed plaint. Even
though the said facts were brought to the
notice of the Trial Court by the Staterespondents while filing objections and in
the aforesaid circumstances, the Court had
rightly rejected the application. It is further
submitted that on account of order dated
06.10.2020 passed by this Court, the
private respondents has suffered losses and
his crops/produce worth Rs. 4.5 lakhs have
been taken away by the revisionist in such
circumstances, appropriate orders be passed
against the revisionist.

17. In rejoinder, the learned counsel
for
the
revisionist
has
denied
the
submissions of both the State counsel as
well as the learned Senior Counsel for the
private respondent. It is submitted that
though the arguments of the learned Senior
Counsel raises contentious issues which are
not the subject matter of the instant revision
as the scope is only to adjudge the validity
of the order dated 15.07.2019 by which the
leave to institute the suit by exempting
Section 80 (1) C.P.C. was refused.
Nevertheless, it is submitted by the learned
counsel for the revisionist that even while
filing the objections on 14.07.2020, the
State did not disclose to whom the alleged
lease was given nor it indicated that what
was the lease rent. The only avement in
paragraph 6 of the objection was that the
lease has been granted to some other person
on twice the lease rent as paid by the
revisionist. He has pointed out that the
record would indicate that the lease rent
paid by the private respondents is Rs.
19,000/- per acre whereas the revisionist
684 INDIAN LAW REPORTS ALLAHABAD SERIES
was paying Rs. 14,000/- per acre, hence the
statement made by the State in their
objections that the lease rent was twice the
lease rent paid by the revisionist is
apparently false and was stated only to
create prejudice as the State-authorities are
in connivance with the private respondent
no. 4.

18. It is also submitted that the
revisionist had 25.44 acres of land under
his lease, if at all the lease was given to the
private respondent no. 4, it was first
incumbent on the State-authorities to have
demarcated the actual extent since the
record indicates that only 13 acres of land
has been given on paper to the private
respondent
no.
4.
Thus,
without
demarcating the actual 13 acres which was
sought to be given to the private respondent
no. 4, it was not open for the Stateauthorities to forcibly dispossess or take
any action against the standing crop of the
revisionist. Hence the revision deserves to
be allowed.

19. The Court has considered the rival
submissions as well as meticulously
perused the record.

20. Despite various allegations and
counter allegations made by the parties, this
Court finds that the only issue to be
considered is whether the Civil Judge,
Senior Division, Lakhimpur Kheri was
justified in refusing the leave to institute
the suit as provided under Section 80 (2)
C.P.C.

21. Before embarking upon the
aforesaid inquiry in this revision, it is
apposite to notice the law laid down by the
Apex Court in respect of the aforesaid issue
in the case of State of A.P. And Others Vs.
Pioneer Builders A.P. reported in 2006
(12) SCC 119 wherein the Apex Court
considered the legislative background of
Section 80 C.P.C. and its scope and has
held in paras 14, 16, 17, 18 as under:-.

14. From a bare reading of subsection (1) of Section 80, it is plain that
subject to what is provided in sub-section
(2) thereof, no suit can be filed against the
Government or a public officer unless
requisite notice under the said provision
has been served on such Government or
public officer, as the case may be. It is well
settled that before the amendment of
Section 80 the provisions of unamended
Section 80 admitted of no implications and
exceptions whatsoever and are express,
explicit
and
mandatory.
The
section
imposes
a
statutory
and
unqualified
obligation upon the court and in the
absence of compliance with Section 80, the
suit is not maintainable. (See Bhagchand
Dagadusa v. Secy. of State for India in
Council [(1926-27) 54 IA 338 : AIR 1927
PC 176] ; Sawai Singhai Nirmal Chand v.
Union of India [(1966) 1 SCR 986 : AIR
1966 SC 1068] and Bihari Chowdhary v.
State of Bihar [(1984) 2 SCC 627] .) The
service of notice under Section 80 is, thus,
a condition precedent for the institution of
a suit against the Government or a public
officer. The legislative intent of the section
is to give the Government sufficient notice
of the suit, which is proposed to be filed
against it so that it may reconsider the
decision and decide for itself whether the
claim made could be accepted or not. As
observed in Bihari Chowdhary [(1984) 2
SCC 627] the object of the section is the
advancement of justice and the securing of
public good by avoidance of unnecessary
litigation.

16. Thus, in conformity therewith, by
the Code of Civil Procedure (Amendment)
Act, 1976 the existing Section 80 was
2 All. Dalveer Singh Vs. State of U.P. & Ors.
685
renumbered as Section 80(1) and subsections (2) and (3) were inserted with
effect from 1-2-1977. Sub-section (2)
carved out an exception to the mandatory
rule that no suit can be filed against the
Government or a public officer unless two
months' notice has been served on such
Government or public officer. The provision
mitigates the rigours of sub-section (1) and
empowers the court to allow a person to
institute a suit without serving any notice
under sub-section (1) in case it finds that
the suit is for the purpose of obtaining an
urgent and immediate relief against the
Government or a public officer. But, the
court cannot grant relief under the subsection unless a reasonable opportunity is
given to the Government or public officer
to show cause in respect of the relief prayed
for. The proviso to the said sub-section
enjoins that in case the court is of the
opinion that no urgent and immediate relief
should be granted, it shall return the plaint
for presentation to it after complying with
the requirements of sub-section (1). Subsection (3), though not relevant for the
present case, seeks to bring in the rule of
substantial compliance and tends to relax
the rigour of sub-section (1).

17. Thus, from a conjoint reading of
sub-sections (1) and (2) of Section 80, the
legislative intent is clear, namely, service of
notice under sub-section (1) is imperative
except where urgent and immediate relief is
to be granted by the court, in which case a
suit against the Government or a public
officer may be instituted, but with the leave
of the court. Leave of the court is a
condition precedent. Such leave must
precede the institution of a suit without
serving notice. Even though Section 80(2)
does not specify how the leave is to be
sought for or given, yet the order granting
leave must indicate the ground(s) pleaded
and application of mind thereon. A
restriction on the exercise of power by the
court has been imposed, namely, the court
cannot grant relief, whether interim or
otherwise,
except
after
giving
the
Government
or
a
public
officer
a
reasonable opportunity of showing cause in
respect of relief prayed for in the suit.

18. Having regard to the legislative
intent noticed above, it needs little
emphasis that the power conferred on the
court under sub-section (2) is to avoid
genuine hardship and is, therefore, coupled
with a duty to grant leave to institute a suit
without complying with the requirements of
sub-section (1) thereof, bearing in mind
only the urgency of the relief prayed for
and not the merits of the case. More so,
when want of notice under sub-section (1)
is also made good by providing that even in
urgent matters relief under this provision
shall not be granted without giving a
reasonable opportunity to the Government
or a public officer to show cause in respect
of the relief prayed for. The provision also
mandates that if the court is of the opinion
that no urgent or immediate relief deserves
to be granted it should return the plaint for
presentation after complying with the
requirements contemplated in sub-section
(1).

22. Again in the case of State of
Kerala and Others Vs. Sudhir Kumar
Sharma and Others reported in 2013 (10)
SCC 178, the Apex Court referred to the
earlier cases and in paras 19 and 21 has
held as under:-

19. It is an admitted fact that no order
had been passed on the application filed
under Section 80(2) CPC whereby leave of
the court had been sought for filing the suit
without complying with the provisions of
Section 80(1) CPC. In our opinion, a suit
filed without compliance with Section 80(1)
686 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be regularised simply by filing an
application under Section 80(2) CPC.
Upon filing an application under Section
80(2) CPC, the court is supposed to
consider the facts and look at the
circumstances in which the leave was
sought for filing the suit without issuance of
notice
under
Section
80(1)
to
the
government authorities concerned. For the
purpose of determining whether such an
application should be granted, the court is
supposed to give hearing to both the sides
and consider the nature of the suit and
urgency of the matter before taking a final
decision. By mere filing of an application,
by no stretch of imagination can it be
presumed that the application is granted. If
such a presumption is accepted, it would
mean that the court has not to take any
action in pursuance of such an application
and if the court has not to take any action,
then we failed to understand as to why such
an application should be filed.

21.
We
reiterate
that
till
the
application filed under Section 80(2) CPC
is finally heard and decided, it cannot be
known whether the suit filed without
issuance of notice under Section 80(1) CPC
was justifiable. According to the provisions
of Section 80(2) CPC, the court has to be
satisfied after hearing the parties that there
was some grave urgency which required
some urgent relief and therefore, the
plaintiff was constrained to file a suit
without issuance of notice under Section
80(1) CPC. Till arguments are advanced on
behalf of the plaintiff with regard to
urgency in the matter and till the trial court
is satisfied with regard to the urgency or
requirement of immediate relief in the suit,
the court normally would not grant an
application under Section 80(2) CPC. We,
therefore, come to the conclusion that mere
filing of an application under Section 80(2)
CPC would not mean that the said
application was granted by the trial court.

23. In light of the aforesaid decisions
which has succinctly noticed the scope of
Section 80 (1) and (2) C.P.C. it would
reveal that the purpose of enacting Sub
Section 2 of Section 80 is to mitigate the
hardship which may be caused to a party
who would be required to comply with Sub
Section 1 of Section 80 C.P.C. even in the
face of urgency and to ensure that a
meritorious case regarding urgent relief is
not non-suited.

24. The only consideration before
the Court concerned is to ascertain
whether
in
the
given
facts
and
circumstances, there is urgency for a
party to seek relief against State and its
claim
may
not
be
frustrated
for
compliance of Section 80 (1) C.P.C. and
this would entitle the Court to exercise its
jurisdiction to exempt the issuance of
notice under Section 80 (1) and grant the
leave to the party to institute the suit.

25. Applying the principles as laid
down by the Apex Court and testing the
order passed by the Trial Court, it would
indicate that the reasons given in the order
are that the plaintiff had not impleaded the
Chief Secretary, Religious Affairs, State of
U.P. as the property belonged to the Trust
and in First Appeal No. 64 of 2016, the
High Court appointed the Chief Secretary
as the Receiver. Without impleading the
Chief Secretary, the SDM was not a
competent authority, moreover, the Trial
Court has also noticed that there was
nothing to indicate that the revisionist had
sought any leave from the High Court and
in view of the aforesaid, the Trial Court has
recorded that there is no urgency.
2 All. Dalveer Singh Vs. State of U.P. & Ors.
687

26. This Court upon considering the
material on record as well as the reasons
contained in the impugned order finds that
the approach of the Trial Court was
completely erroneous. The issue regarding
mis-joinder or non-joinder of the parties is
something which has to be considered on
the merit of the matter. At the stage of
considering the the application under
Section 80 (2) C.P.C., the only focus of the
Court should be on the aspect of urgency. It
must be remembered that at this stage, the
plaint is not before the Court to enable it to
enter into merits.

27. Apparently, where the revisionist
was apprehending dispossession at the
behest of the State-respondents and had
pleaded that he had been a lessee in
possession and especially when the Staterespondent
in
their
objections
dated
14.07.2020 could not indicate or express
how
the
State-authorities
had
taken
possession nor was it the case of the State
as set up in their objections that the
revisionist was never a lessee or in its
possession. If a person who is or who has
been in lawful possession of a property and
is under a threat of being dispossessed
definitely has a right to institute a suit and
threat of dispossession is undoubtedly a
circumstance which enables a person to
seek an urgent relief from the Court.

28. It is one thing to say that there is
no urgency and it is another thing to say
that in a given fact situation the plaint may
not be properly framed and the person may
not be entitled to any interim relief.

29. There is another way to view it.
Even when a plaint is before the Court and
there is any defect regarding mis-joinder or
non-joinder of parties, this ipso facto does
not render the plaint as non-maintainable
nor can it be rejected forthwith. Thus in the
present case, where the question of urgency
is to be considered by the trial court but it
misdirected itself towards merits of the
matter which at that point of time was not
even before the Court as the plaint in its
sense was not yet registered/admitted by
the Court.

30. At the stage of consideration of an
application under Section 80 (2) C.P.C., the
role of the Court is only confined to
examine that whether the facts pleaded give
rise to a cause of action upon which the
plaintiff is entitled to seek an urgent
remedy which otherwise would frustrate
the claim or cause of the plaintiff if the suit
is not entertained for want of compliance of
Section 80 (1) C.P.C.

31. In the totality of the facts and
circumstances, this Court is of the definite
view that the impugned order cannot be
sustained and the leave ought to have been
granted. The refusal of the leave by the trial
court was not proper and the Trial Court
has failed to exercise jurisdiction vested in
it in law.

32. Before parting another aspect of
the matter needs attention. This Courts
finds that while filing the aforesaid revision
the first order passed by the Court is dated
31.08.2020 wherein the revision was
directed to be connected with First Appeal
No. 64 of 2016. Thereafter upon the
C.M.A. No. 52619 of 2020 an interim order
was passed by this Court is 06.10.2020
which reads as under:-

"(C.M. Application No.52619 of 2020Application for interim relief)

Learned
counsel
for
the
revisionists/petitioners
states
that
his
Revision is pending and in terms of the
688 INDIAN LAW REPORTS ALLAHABAD SERIES
order passed in the earlier Revision passed
by this Court, the petitioners are continuing
in possession till date. They have deposited
rent of the property in dispute till
30.06.2020 thereafter the Sub Divisional
Magistrate is not taking rent only to make
out the revisionists as defaulter. The SDM
has sent his officials to get the land
vacated. The petitioners' crop is standing
on the land in question and his Revision is
pending before this Court, his crop may be
protected
from
destruction
by
the
Authorities.

Let counter affidavit be filed to the
Revision as well as to the application for
interim relief filed today by the office of the
learned Chief Standing Counsel within
three weeks. The petitioners shall file
rejoinder
affidavit
within
one
week
thereafter.

It is provided as an interim measures,
in case the petitioners deposit rent upto
date including all arrears within a period
of ten days from today then the respondent
shall not interfere and shall not destroy the
crop standing on the property in dispute.

List this matter on 09.11.2020."

33. From the perusal of the aforesaid
order dated 06.10.2020, it would indicate
that this is the first time when the
respondent was required to file their
counter affidavit. Prior to 06.10.2020, no
notice was issued to the State-respondents
nor a copy of the revision was served on
them and practically they were not even
aware of the aforesaid revision. It is only
thereafter in the month of November,2020
that the private respondents made an
application for impleadment and filed an
application for vacation of the order dated
06.10.2020.

34. In the aforesaid backdrop what is
evident is the fact that on 06.10.2020 an
interim order was passed without notice to
the State-respondents. It is a legal maxim
that what cannot be done directly cannot be
done indirectly either. Where Section 80 (2)
C.P.C. provides that even though if the
leave is granted yet no interim relief will be
granted
without
hearing
the
Staterespondents and in the instant case, the
leave had been refused. The plaintiff
preferred the instant revision and the
interim order dated 06.10.2020 was passed
without notice to the State-respondents. It
is also to be noticed that prior to the grant
of leave, the suit itself is not before the
Court hence in absence of suit, there was
no occasion to pass any order much less an
interim order.

35. Thus, this Court is of the view that
the interim order dated 06.10.2020 could
not have been passed without first grant of
leave to institute the suit and then only after
hearing the State-respondents, hence, this
Court has no hesitation in recalling the
order dated 06.10.2020. However, the
parties shall be free to raise all their claims
and counter claims if any before the
Competent Court.

36. In view of the above, revision
deserves to be allowed. The order dated
15.07.2020 passed by the Civil Judge,
Senior Division, Lakhimpur Kheri is set
aside. However, , there shall be no order as
to costs.

37. In the facts and circumstances,
This Court hereby grants leave to the
revisionist to institute the suit without
complying with the provisions of Section
80 (1) C.P.C. The revisionist shall be at
liberty to file the plaint within three weeks
from today and if it is so filed, the same
shall be considered by the Court on its own
merits.
2 All. Shahab Alam & Ors. Vs. State of U.P.
689

38. It is made clear that this Court has
not adjudicated the rights of either of the
parties and any observations made in this
order is limited only for the purposes of
considering the scope of Section 80 (1) and
(2) C.P.C. and it may not be taken as any
expression of opinion on merits of the case
of either of the parties.
----------
(2021)02ILR A689
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 11.01.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE GAUTAM CHOWDHARY, J.

Criminal Appeal No. 1302 of 2015
with Criminal Appeal 821 of 2015

Shahab Alam & Ors. ...Appellants
Versus
State of U.P. ...Opp. Party

Counsel for the Appellants:
Sri S.D. Singh Jadaun, Sri M.A.S. Alam
Khan

Counsel for the Opp. Party:
A.G.A., Sri Abhinav Singh

A. Criminal Law - Indian Penal Code -
Sections 304(1)/34, 323/34 - Culpable
homicide
-
Conduct
of
accused
and
witnesses - Relevancy - Presence of all the
accused is identified - To make out a case
under Section 304(I)/34 I.P.C. conduct of
accused and the witnesses must be also
looked into - Heated altercation between
parties, main accused brought a knife and
stabbed the deceased, which proved fatal
causing death - Held, involvement of the
appellants is proved beyond reasonable
doubt. (Para 3, 13, 14, 17 and 24)
B. Criminal Law - Indian Penal Code -
Section
34
-
Common
intention
-
Ingredients - To convict accused with aid of
Section 34 I.P.C., apart from the fact that
there should be two or more accused, two
factors must be established: 1. Common
intention, and 2. Participation of the
accused in the commission of an offence is
not a must. (Para 20)
C. Criminal Law - Indian Penal Code -
Section 34 - Common intention - Collective
participation
-
Pre-mediation
before
incident - Section 34 pre-supposes that
there must be common intention and
participation of the accused in commission
of an offence - Incident occurred at the
residence of main-accused, which means
that he had not gone to the place of the
incident - There was no common intention
nor there was collective participation -
Offence
was
committed
without
any
common intention and all they had attacked
the other injured in different ways -
Punishment of life imprisonment to the
main accused u/s 304(1) IPC held liable to
be
substituted
with
sentence
of
imprisonment already undergone - Other
accused were held guilty u/s 324, not u/s
304(1) IPC. (Para 16 , 24, 26, 29 and 30)
Criminal Appeal partly allowed. (E-1)
Cases relied on :-
1. Criminal Appeal No. 2108 of 2003, Aflatoon
Vs St. of U.P. decided on 18.8.2017
2. Criminal Appeal No. 5441 of 2003, Arvind
Sharma Vs St. of U.P. decided on 19.8.2017
3. Criminal Appeal No. 3032 of 2004, Munna @
Nikkhlesh Sharma Vs St. of U.P. decided on
31.07.2017
4. Criminal Appeal No. 5095 of 2004, Furqan Vs
St. of U.P. decided on 31.08.2017
5. Subed Ali & ors. Vs St. of Assam, (2020) 10
SCC 517
6. Ilangovan Vs St. of T.N., (2020) 10 SCC 533
7. Subal Ghorai Vs St. of W.B., (2013) 4 SCC
607
8. Jai Bhagwan Vs St. of Har., 1999 Cr.L.J.
(S.C.)