# Ishaq Khan & Ors v. State of U.P. and Ors

- **Citation:** (2013) 3 ILRA 1527
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-10-22
- **Case number:** Civil Misc. Writ Petition No. 57762 of 2013
- **Bench:** Amreshwar Pratap Sahi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ishaq-khan-ors-v-state-of-u-p-and-ors-42739
- **Pages:** 3

## Headnote

Constitution of India, Art.-226- Appealagainst the order passed under order 9
Rule 13 C.P.C.-Appeal by such person not
party suit for partition and declarationsubmission
that
appeal
itself
not
maintainable as applicant was not partyheld-misconceived-any aggrieved person
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
can
maintain
the
appeal-whether
contesting respondent within definition
of aggrieved person or not still open to
be
decided-petitioner
will
have
opportunity to raise such objectionpetition dismissed.

Held: Para-6 & 7
6-Sri Saxena urged that the appeal had
been filed only against the rejection of
the application under Order IX Rule 13.
This submission of Sri Saxena is not
correct inasmuch as the prayer made in
the appeal, copy whereof is Annexure-4
to the writ petition, is clearly to the
extent to set aside the judgment and
decree dated 11.8.2009.

7-Thus, whether the respondents are
aggrieved persons or not is still open for
consideration by the appellate court
which is yet to hear the appeal. In the
circumstances, the said opportunity to
the petitioners is still available to raise
this issue as to whether the respondent
Nos. 4 and 5 fall within the definition of
aggrieved person or not.

## Text

3 All] Ishaq Khan & Ors. Vs. State of U.P. and Ors.
1527
Section 122-B (4F) was acknowledged in
favour of the respondent nos. 4 and 5 only
under an order of the Sub-Divisional
Officer dated 17.6.1995. This order can
be termed to be administrative in nature if
it does not adjudicate any dispute or
controversy and is founded on the basis of
possession which is not disputed by the
State. It is in these circumstances that the
apex court in the case of Manore (supra)
observed that filing of a suit was not
necessary.

11. However, in the present case, it
appears that the petitioner is claiming
rights which is in the nature of a
cotenancy on the ground that he was also
in possession alongwith his brothers. This
becomes a disputed question of fact which
has to be established by leading evidence,
and in the circumstances, this could not
have been done by the method of a
restoration application. However, the
petitioner has a right to establish his
possession by way of filing a suit.

12. Learned Commissioner while
reversing the order of the Sub-Divisional
Officer has made observations on the
merits of the claim of the petitioner which
can adversely affect him in the event the
petitioner files a suit. This is because the
said revision has been filed by the
respondents under Section 333 of U.P.
Z.A. & L.R. Act, 1950 and any finding
made by the Commissioner shall become
binding on a subordinate authority if a
suit is tried by the Sub-Divisional Officer
or by any such court of competent
jurisdiction. In the circumstances, the
Additional Commissioner fell in error by
proceeding to record findings on merits
when he had refused to accept the
explanation for delay given by the
petitioner in moving the restoration
application. To that extent, Sri Rajiv
Kumar Mishra is correct in his submission
that the learned Commissioner has
exceeded in his jurisdiction.

13. Sri S.C. Verma, learned counsel
for the respondent has been unable to
dispute the aforesaid proposition to the
aforesaid extent and therefore this writ
petition is partly allowed setting aside the
order dated 11.9.2013 in so far as it seeks
to declare the rights of the petitioner as
against the claim of the respondent nos. 4
and 5.

14. The petitioner shall now be at
liberty to file a suit and seek his
declaration against the respondent nos. 4
and 5, if he is able to establish his
possession alongwith them.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2013

BEFORE
THE HON'BLE AMRESHWAR PRATAP SAHI, J.

Civil Misc. Writ Petition No. 57762 of 2013

Ishaq Khan & Ors.
 ...Petitioners
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioners:
Sri Ram Jee Saxena, Sri Raghuvansh
chandra

Counsel for the Respondents:
C.S.C., Sri Anuj Kumar

Constitution of India, Art.-226- Appealagainst the order passed under order 9
Rule 13 C.P.C.-Appeal by such person not
party suit for partition and declarationsubmission
that
appeal
itself
not
maintainable as applicant was not partyheld-misconceived-any aggrieved person
1528 INDIAN LAW REPORTS ALLAHABAD SERIES
can
maintain
the
appeal-whether
contesting respondent within definition
of aggrieved person or not still open to
be
decided-petitioner
will
have
opportunity to raise such objectionpetition dismissed.

Held: Para-6 & 7
6-Sri Saxena urged that the appeal had
been filed only against the rejection of
the application under Order IX Rule 13.
This submission of Sri Saxena is not
correct inasmuch as the prayer made in
the appeal, copy whereof is Annexure-4
to the writ petition, is clearly to the
extent to set aside the judgment and
decree dated 11.8.2009.

7-Thus, whether the respondents are
aggrieved persons or not is still open for
consideration by the appellate court
which is yet to hear the appeal. In the
circumstances, the said opportunity to
the petitioners is still available to raise
this issue as to whether the respondent
Nos. 4 and 5 fall within the definition of
aggrieved person or not.

(Delivered by Hon'ble Amreshwar PratapSahi, J.)

1. Heard learned counsel for the
petitioners.

2. The contention raised by Sri
Saxena is that the appeal filed by the
defendant - respondent under Section 331
(3) of the U.P. Zamindari Abolition &
Land
Reforms
Act,
1950,
is
not
maintainable and, therefore, the impugned
order, being cursory in nature without
considering the argument raised, deserves
to be set aside.

3. It appears that a Suit filed by the
petitioners - plaintiffs under Sections
176/229-B was decreed. The petitioners
contend that the defendants - respondents
were not parties to the Suit. They filed an
application under Order 9 Rule 13 CPC
which was rejected. Thereafter, they have
filed an Appeal. The contention of Sri
Saxena is that the Appeal was not
entertainable against the rejection of the
said application and even otherwise on
merits, the defendants were not aggrieved
person.
In
such
circumstances,
the
objection of the petitioner has been
cursorily dealt with while rejecting the
said plea vide order dated 17.11.2012.

4. I have considered the submissions
raised and I have also perused the memo
of appeal, copy whereof has been filed as
Annexure-4.

5. So far as the first contention of Sri
Saxena that an application under Order 9
Rule 13 CPC cannot be filed by a person
who was not a party to the Suit appears to
be correct but at the same time such a
person can always file an appeal provided
he/she falls within the definition of an
aggrieved person. The defendant can file
an application under Order IX Rule 13 in
the Suit whereas an appeal can be filed by
any aggrieved person. This is the
distinction in the scope of these two
remedies.

6. Sri Saxena urged that the appeal
had been filed only against the rejection
of the application under Order IX Rule
13. This submission of Sri Saxena is not
correct inasmuch as the prayer made in
the appeal, copy whereof is Annexure-4
to the writ petition, is clearly to the extent
to set aside the judgment and decree dated
11.8.2009.

7. Thus, whether the respondents are
aggrieved persons or not is still open for
consideration by the appellate court which
is yet to hear the appeal. In the
circumstances, the said opportunity to the
3 All] Vishal Srivastava Vs. State of U.P. and Ors.
1529
petitioners is still available to raise this
issue as to whether the respondent Nos. 4
and 5 fall within the definition of
aggrieved person or not.

8. Consequently, I do not find any
reason to entertain this writ petition. The
writ petition is dismissed.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.10.2013

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Civil Misc. Writ Petition No. 58418 of 2013

Vishal Srivastava
 ...Petitioner
Versus
State of U.P. and Ors. ...Respondents

Counsel for the Petitioner:
Sri Kamal Dev Rai

Counsel for the Respondents:
C.S.C.

Constitution
of
India,
Art.-226Compassionate appointment-can not be
claimed by virtue of succession-as matter of
right-father of petitioner died in 1995-when
he was less than 5 years old-mother getting
pension-never
put
any
claim
for
her
appointment-manage to educate her son
and maintain herself alongwith two childrenfor such long time rightly rejected by
authorities-even in writ petition nothing
whisper regarding financial crisis-which still
continuing in the year 2012-in absence of
basic foundation about financial distresspower under proviso of Rule 5 can not be
exercised-refusal to grant compassionate
appointment-held-proper.

Held: Para-10
The proviso stressed on the words that
relaxation has to be given in specific cases
where undue hardship would cause on
account of adherence to the provision
relating to five years period within which
the application ought to have been made.
The language makes it very clear that the
relaxation is not to be resorted lightly and
frequently. The basic objective and purpose
of compassionate appointment, therefore,
has to be adhered. There is no scope for
omission of this basic requirement that the
family's sufferance on account of financial
hardship etc. is continuing. When in a
particular case, no ground or foundation is
made out with respect to such financial
distress, penurious condition etc., the
question of invoking power under proviso
to Rule 5 does not arise at all. In fact, the
proviso at all would not be attracted in such
case
and
denial
of
compassionate
appointment in such case deserves to be
sustained and would not be justified to be
interfered by this Court.

Case Law discussed:
2008(11) SCC 384; JT 2009(8) SC 135; JT
2009(6) SC 624; 2013(31) LCD 674; 2010(7)
ADJ 1 (DB); W.P. No. 58401 of 2013.

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard learned counsel for parties
and perused the record.

2.

Petitioner's
claim
for
compassionate appointment has been
rejected on the ground that the death of
deceased
employee
took
place
in
17.3.1995 and after more than 17 years,
there is no justification to provide
compassionate appointment.

3. I do not find any irregularity or
illegality in the view taken by the
authorities concerned. It is well settled
that if the family had sufficient means to
carry on its affairs for long time, in such a
case compassionate appointment cannot
be made. The purpose of compassionate
appointment
is
not
to
provide
employment by succession but it is to
meet immediate necessity arrived at due