# India Deo v. Smt. Ram Pyari 1982 All LJ

- **Citation:** (2013) 1 ILRA 218
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-02-01
- **Case number:** Civil Misc. Writ Petition No. 5833 of 2013
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/india-deo-v-smt-ram-pyari-1982-all-lj-42431
- **Pages:** 5

## Headnote

U.P. Consolidation of Holding Act, 1953
section
48
(2)-revision
against
condonation of delay in filing appealdismissed
being
interlocutory
orderrevision
mot
maintainable-heldmisconceived condonation of delay give
right
to
the
parties
to
address
themselves
in
appeal-could
mean
1 All] Bodda Vs.D.D.C. And Others
219
attaching
finality-D.D.C.
Committed
mistake
by
holding
revision
as
not
maintainable-order quashed-consequential
direction issued.

Held: Para-13

Here in this case, the delay has been
condoned, meaning thereby, the other
side had right to pursue the appeal. Had
the delay not been condoned, the right
of pursuing appeal would have never
arisen, as unless the delay is condoned,
there can be no appeal. Explanation (2)
of section 48 of the Act explains the
interlocutory order, here the effect of
allowing the application filed under
section 5 of the Limitation Act would
mean attaching the finality to the
proceeding, therefore, such order will
not fall in the ambit of interlocutory
order and the revision was maintainable.
The learned DDC has erred in dismissing
the revision as not maintainable.

Case Law discussed:
AIR 1977 SC 2185; AIR 1980 SC 962; AIR
1978 SC 47; 1990 RD 162; 2006 RD 646

## Text

218 INDIAN LAW REPORTS ALLAHABAD SERIES [2013

We are of the view that the case of
India Deo v. Smt. Ram Pyari 1982 All LJ
1308 has been correctly decided and the
said decision requires no consideration,
while the Division Bench case, Dr.
Ayodhya Prasad v. Gangotri 1981 All LJ
647 is regarding the jurisdiction of
consolidation authorities, but so far as it
holds that suit in respect of void document
will lie in the Revenue Court it does not
lay down a good law. Suit or action for
cancellation of void document will
generally lie in the Civil Court and a
party cannot be deprived of his right
getting this relief permissible under law
except when a declaration of right or
status and a tenure-holder is necessarily
needed
in
which
event
relief
for
cancellation will be surplusage and
redundant. A recorded tenure-holder
having prima facie title in his favour can
hardly be directed to approach the
Revenue Court in respect of seeking relief
for cancellation of a void document which
made him to approach the Court of law
and in such case he can also claim
ancillary relief even though the same can
be granted by the Revenue Court.

In any view of the matter, the present
action
would
be
covered
by
the
pronouncement of the Full Bench. It is not
necessary to go into the correctness of the
view of the Full Bench as its correctness
was not assailed before us."

9. Accordingly, there is no error in
the findings of the courts below holding
the suit to be maintainable before the civil
court.

10. Learned counsel for the
petitioner has referred to an authority of
this court reported in Tara Chand Vs.
A.D.J., 2010 (7) ADJ 384. In the said
authority, it has been held that if a suit is
filed by a stranger for cancellation of sale
deed of agricultural land then it may not
be maintainable before the civil court.
However, in the instant case, the suit was
filed by the executant of the sale deed
herself who was recorded tenure holder
till the execution of the sale deed. After
her death Shanker Lal was substituted at
her place on the basis of Will. If during
the life time of the executant of the sale
deed, any other persons would have filed
the suit for cancellation of the sale deed or
declaration of the same as void then it
would not have been maintainable before
civil court.

11. Accordingly, there is no merit in
the writ petition, hence it is dismissed.
---------
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.02.2013

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 5833 of 2013

Bodda

...Petitioner
Versus
D.D.C. And Others
 ...Respondents

Counsel for the Petitioner:
Sri Ram Swaroop Singh
Sri Shivakant Singh

Counsel for the Respondents:
C.S.C.

U.P. Consolidation of Holding Act, 1953
section
48
(2)-revision
against
condonation of delay in filing appealdismissed
being
interlocutory
orderrevision
mot
maintainable-heldmisconceived condonation of delay give
right
to
the
parties
to
address
themselves
in
appeal-could
mean
1 All] Bodda Vs.D.D.C. And Others
219
attaching
finality-D.D.C.
Committed
mistake
by
holding
revision
as
not
maintainable-order quashed-consequential
direction issued.

Held: Para-13

Here in this case, the delay has been
condoned, meaning thereby, the other
side had right to pursue the appeal. Had
the delay not been condoned, the right
of pursuing appeal would have never
arisen, as unless the delay is condoned,
there can be no appeal. Explanation (2)
of section 48 of the Act explains the
interlocutory order, here the effect of
allowing the application filed under
section 5 of the Limitation Act would
mean attaching the finality to the
proceeding, therefore, such order will
not fall in the ambit of interlocutory
order and the revision was maintainable.
The learned DDC has erred in dismissing
the revision as not maintainable.

Case Law discussed:
AIR 1977 SC 2185; AIR 1980 SC 962; AIR
1978 SC 47; 1990 RD 162; 2006 RD 646

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

1. Heard Sri Ram Swaroop Singh,
alongwith Sri Shivakant Singh, learned
counsel for the petitioner and learned
Standing Counsel appearing for the
respondents.

2. Through this writ petition, the
petitioner has prayed for issuing a writ of
certiorari
quashing
the
order
dated
8.1.2013 passed by the Deputy Director of
Consolidation
(in
short,
'DDC')
in
revision no. 156 (Bodda Vs. Raghuvir and
Others), by which the DDC has dismissed
the revision of the petitioner holding it as
not maintainable.

3. While assailing this order, Sri
Singh contends that the Settlement
Officer of Consolidation has erred in
condoning the delay of 23 years in the
appeal filed by the other side challenging
the order dated 23.3.1987 passed by the
Assistant Consolidation Officer. It is also
contended that the delay was condoned
ignoring the objection to the delay
condonation application. The DDC has
dismissed the revision on the ground that
the
revision,
being
against
an
interlocutory order, is not maintainable. In
the submissions of learned counsel for the
petitioner, an order condoning the delay
in filing the appeal would fall in the ambit
of final order and not interlocutory order
and revision would be maintainable.

4. I have heard learned counsel for
the parties and perused the record.

5. With the consent of learned
counsel for the parties, the writ petition is
taken up for final disposal with a liberty
to respondent nos. 4 to 7 to file an
application
for
recall,
variation
or
modification of the order, which is being
passed today.

6. The facts giving rise to this case
are that it appears, against the order dated
23.7.1987
passed
by
the
Assistant
Consolidation Officer, an appeal was filed
in the year 2012, being appeal no. 121.
The said appeal was barred by time,
therefore, an application for condonation
of delay was also filed. The other side has
filed an objection on the ground that
appeal
was
not
maintainable
after
notification under section 52 of the U.P.
Consolidation of Holdings Act, 1953 (in
short, 'the Act'). It was also contended that
23 years delay has not been properly
explained. The Settlement Officer of
Consolidation, ignoring the petitioner's
objection, has condoned the delay vide
220 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
order dated 8.8.2012. Aggrieved by this
order, the petitioner herein has filed
revision, which was numbered as revision
no. 156. The learned DDC dismissed the
revision as not maintainable being against
an interlocutory order.

7. For appreciating the controversy
in hand, it would be useful to look into the
provisions contained under sub-section
(1) of section 48 of the Act and
explanation (2) thereto, which confers a
right
of
revision
under
the
U.P.
Consolidation of Holdings Act, 1953. The
same is reproduced hereinunder:

"48(1).
The
Director
of
Consolidation may call for and examine
the record of any case decided or
proceedings taken by any subordinate
authority for the purpose of satisfying
himself as to the regularity of the
proceedings; or as to the correctness,
legality or propriety of any order other
than an interlocutory order passed by
such authority in the case or proceedings,
may, after allowing the parties concerned
an opportunity of being heard, made such
order in the case or proceedings as he
thinks fit.

Explanation (2) - For the purposes of
this section thte expression 'interlocutory
order' in relation to a case or proceeding,
means such order deciding any matter
arising in such case or proceeding or
collateral thereto as does not have the
effect to finally disposing of such case or
proceeding."

8. From the perusal of sub-section
(1) of section 48 of the Act, it would
transpire that the revision would be
maintainable against any order except
interlocutory order and the interlocutory
orders have been explained in explanation
(2), which means such order deciding any
matter arising in such case or proceeding
or collateral thereto as does not have the
effect to finally disposing of such case or
proceeding.

9. The literal meaning of the word
'interlocutory order' has been defined in
various dictionaries as under:

"(1) Law Lexicon (P. Ramanath
Ayer) 1997 Edition: Interlocutory order:
An interlocutory order is one which is
made pending the case and before a final
hearing on the merits.

An interlocutory order is made to
secure some end and purpose necessary
and essential to the progress of the suit,
and generally collateral to the issues
formed
by
the
pleadings
and
not
connected with the final judgment.

(2) Halsbury's Law of England, 4th
Edition, Vol. 26, Paragraph 506:

Interlocutory order: An order which
does not deal with the final rights of the
parties, but either - (1) is made before
judgment and gives no final decision on
the matters in dispute, but is merely on a
matter of procedure, or (2) is made after
judgment, and merely directs how the
declarations of right already given in the
final judgment are to be worked out, is
termed 'interlocutory'. An interlocutory
order, even though not conclusive of the
main dispute, may be conclusive as to the
subordinates matter with which / ideals.

(3)
Concise
Oxford
English
Dictionary, 11th Edition:
1 All] Bodda Vs.D.D.C. And Others
221
Interlocutory: (of a decree or judgment)
given provisionally during the course of a
legal action."

10. On bare perusal of the meaning of
the word 'interlocutory order', it would
transpire that an order, which does not have
the effect of finality of the proceedings. In
other words, an order in a pending
proceeding, which is made during the
progress of an action and which does not
finally dispose of the rights of the parties.

11. The word 'interlocutory order' has
also been used in section 397 of Code of
Criminal Procedure and the same came up
for consideration before the apex Court in
the case of Amar Nath Vs. State of
Haryana AIR 1977 SC 2185, where the
apex Court has held that the term
'interlocutory order' merely denotes orders
of a purely interim or temporary nature
which do not decide or touch the important
rights or the liabilities of the parties. In the
case of V.C. Shukla Vs. State through CBI,
AIR 1980 SC 962, the apex Court held that
the interlocutory order has to be construed
in contradiction to or in contrast with final
order, it means not a final order, but an
intermediate order. It is made between the
commencement of an action and the entry
of the judgment.

12. In Madhu Limaye Vs. State of
Maharashtra AIR 1978 SC 47, while
considering
meaning
of
expression
'interlocutory order' their lordships of
Supreme Court observed as follows:

"But in our judgment such an
interpretation
and
the
universal
application of the principle that what is
not a final order must be an interlocutory
order is neither warranted nor justified. If
it were so, it will render almost nugatory
the revisional power of the Sessions Court
or the High Court conferred on it by S.
397(1). On such a strict interpretation,
only those orders would be revisable
which are orders passed on the final
determination of the action but are not
appealable under Chap. XXIX of the
Code."

13. Here in this case, the delay has
been condoned, meaning thereby, the
other side had right to pursue the appeal.
Had the delay not been condoned, the
right of pursuing appeal would have never
arisen, as unless the delay is condoned,
there can be no appeal. Explanation (2) of
section 48 of the Act explains the
interlocutory order, here the effect of
allowing the application filed under
section 5 of the Limitation Act would
mean attaching the finality to the
proceeding, therefore, such order will not
fall in the ambit of interlocutory order and
the revision was maintainable. The
learned DDC has erred in dismissing the
revision as not maintainable.

14. The view taken by me finds
support from the judgments of this Court in
Bhagwat and Others Vs. Deputy Director of
Consolidation and Others 1990 RD 162 and
in Meharban and Others Vs. Deputy
Director of Consolidation and Others 2006
RD 646.

15. In the result, the writ petition
succeeds and is allowed. The impugned
order dated 8.1.2013 passed by the DDC in
revision no. 156 (Bodda Vs. Raghuvir and
Others) is hereby quashed. The DDC is
directed to pass a fresh order, treating the
revision as maintainable, on merit in
accordance with law after due notice to
the parties.
---------
222 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
 ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.02.2013

BEFORE
THE HON'BLE KRISHNA MURARI, J.

Civil Misc. Writ Petition No. 5979 of 2013

Gopal Chandra

...Petitioner
Versus
Kundan Lal Gulati
 ...Respondents

Counsel for the Petitioner:
Sri Lalit Kumar

Counsel for the Respondents:
Sri R.K.Pandey

Code of Civil Procedure, Order 6 Rule 17amendment of plaint-on highly belated
stage of evidence-facts sought to be
brought-already
in
written
statementnothing whisper about no knowledge of this
fact earlier-if such amendment liberally
allowed-would be no end of litigation-Trial
Court rightly rejected-no interference call
for.

Held: Para-15

 In the case in hand, the facts sought to be
added by way of amendment by the
petitioner were either already existing in
the written statement or were not germane
and irrelevant to the controversy. Further,
the application was moved after the trial
had commenced without specifying the
reasons that the facts could not be raised or
mentioned in the pleadings before the
commencement of trial. The only reason
mentioned in the amendment application
and the affidavit filed in support thereof is
that at the time of preparation of the case,
it transpired that facts were left out from
being mentioned in the written statement.
Petitioner has not even asserted that facts
were not within his knowledge as such
despite
due
diligence
could
not
be
mentioned in the written statement.

Case Law discussed:
{2012 (3) ARC 619}

(Delivered by Hon'ble Krishna Murari, J.)

1. This writ petition is directed
against order dated 05.10.2012 passed by
Prescribed Authority in P. A. Case no. 02
of 2011 under Section 21 (1) (a) of U. P.
Act No. 13 of 1972, (herein after referred
to as the "Act") rejecting the application
moved by the tenant-petitioner under
Order
VI
Rule
17
CPC
seeking
amendment in the written statement.

2. I have heard learned counsel for
the petitioner and Sri R. K. Pandey,
learned
counsel
appearing
for
the
respondents.

3. Brief facts as emerge out from the
pleadings of the writ petition are that
respondent-landlord filed an application
under Section 21 (1) (a) of the Act for the
release of the shop in dispute on the
ground of need to establish the business
for his younger son. The application was
contested by the petitioner-tenant by
filing written statement. During the
pendency of the proceedings after the trial
had commenced and the matter was being
fixed for hearing an application under
Order
VI
Rule
17
CPC
seeking
amendment in the written statement was
moved which was rejected.

4. It has been contended by the
learned counsel for the petitioner that
parties are at liberty to amend their
pleadings which is necessary and essential
for adjudication of the dispute and the
same is to be allowed liberally and the
Prescribed Authority committed an error
of law in rejecting the amendment
application. Reliance in support of the