# Kalloo v. State of U.P

- **Citation:** (2024) 11 ILRA 93
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-11-12
- **Case number:** Writ C No. 1002288 of 1994
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kalloo-v-state-of-u-p-51149
- **Pages:** 4

## Headnote

A.K.
Verma,
C.P.M.
Tripathi,
Manjive
Shukla, Manju Gupta

A.
Revenue
Law
-
Civil
Procedure
Code,1908 - Section 151 - Order IX - Rule
13 - UP Zamindari Abolition & Land
Reform Act, 1950 - Section 229-B -
Declaratory suit - Recall application to set
aside the decree was rejected - Rather
filing regular appeal, the petitioner moved
an application u/s 151 CPC - Scope of
inherent jurisdiction - Held, the inherent
power so provided u/s 151 C.P.C. can only
be invoked where there is no alternative
remedy before the aggrieved party, but in
the instant case, the remedy was to file an
appeal u/s 331 (4) of the U.P. Z. A. & L. R.
Act, therefore, the order passed on the
application filed u/s 151 C.P.C. is wholly
without jurisdiction and is liable to be set
aside. (Para 20)
B.
Revenue
Law
-
Consolidation
of
Holding
Act,
1953
-
Section
4
-
Abatement of proceeding - Notification
u/s 4 already issued - Effect - Held, the
power to entertain the application by
other
modes
were
not
available
to
respondent nos. 1 to 3 due to abating of
the proceedings - The respondent acted
illegally and without authority of law in
entertaining the application and setting
aside the judgment and decree dated
31.8.1988. (Para 19)
Writ petition allowed. (E-1)

## Text

11 All. Kalloo Vs. State of U.P.
93

124. The parties will bear their own
costs of litigation.
----------
(2024) 11 ILRA 93
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 12.11.2024

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ C No. 1002288 of 1994

Kalloo ...Petitioner
Versus
State of U.P. ...Respondent

Counsel for the Petitioner:
S.K. Bartariya, Vinay Misra

Counsel for the Respondent:
A.K.
Verma,
C.P.M.
Tripathi,
Manjive
Shukla, Manju Gupta

A.
Revenue
Law
-
Civil
Procedure
Code,1908 - Section 151 - Order IX - Rule
13 - UP Zamindari Abolition & Land
Reform Act, 1950 - Section 229-B -
Declaratory suit - Recall application to set
aside the decree was rejected - Rather
filing regular appeal, the petitioner moved
an application u/s 151 CPC - Scope of
inherent jurisdiction - Held, the inherent
power so provided u/s 151 C.P.C. can only
be invoked where there is no alternative
remedy before the aggrieved party, but in
the instant case, the remedy was to file an
appeal u/s 331 (4) of the U.P. Z. A. & L. R.
Act, therefore, the order passed on the
application filed u/s 151 C.P.C. is wholly
without jurisdiction and is liable to be set
aside. (Para 20)
B.
Revenue
Law
-
Consolidation
of
Holding
Act,
1953
-
Section
4
-
Abatement of proceeding - Notification
u/s 4 already issued - Effect - Held, the
power to entertain the application by
other
modes
were
not
available
to
respondent nos. 1 to 3 due to abating of
the proceedings - The respondent acted
illegally and without authority of law in
entertaining the application and setting
aside the judgment and decree dated
31.8.1988. (Para 19)
Writ petition allowed. (E-1)
(Delivered by Hon'ble Irshad Ali , J.)

1. Heard Sri Vinay Misra, learned
counsel for the petitioners and learned
Standing Counsel for the State-respondent.

2. Despite repeated time granted to the
learned
Standing
Counsel
for
Staterespondent, no counter affidavit has been
filed till date and the case was adjourned on
several occasion on the request of learned
Standing Counsel and learned counsel for
the petitioners.

3. Factual background of the case is
that the petitioners were under occupation
of
the
land
bearing
plot
No.775-C
measuring 8 bigha, 7 biswan and 15
biswansi situated in village Bhishampur
Kumhrawan, Tehsil Malihabad, District
Lucknow.

4. It is the case of the petitioners that
the above land was never in possession of
respondent no.4 whose mother was the
Zamindar but only to defeat the claim of
the petitioners, declared the said land as
surplus which caused a clot on the title and
right of the petitioners to cultivate the land
in question.

5. For declaration of their title in
respect of the said land, the petitioners filed
a suit on 23.2.1983 under Section 229-B of
the U.P. Zamindari Abolition and Land
Reforms Act for declaring the petitioners as
Bhumidhar of the l and in question. In the
aforesaid suit, notices were served on all
94 INDIAN LAW REPORTS ALLAHABAD SERIES
the
respondents
including
the
State
respondents but no respondent ventured to
file the objection/ reply to the said suit and
in these circumstances the suit was decreed
on 31.8.1988 by the respondent No.5
declaring the petitioners as Bhumidhars of
the land bearing plot No.775 measuring 8
bigha, 7 biswan and 15 biswansi situated in
village Bhishampur Kumhrawan, Tehsil
Malihabad, District Lucknow. The decree
of the suit is annexed as Annexure-1 to the
writ petition.

6. In the aforesaid suit, the State was a
party who kept silent silent for almost a
year and on 12.8.1989, respondent Nos.1 to
3, through D.G.C. (Revenue) moved an
application under Order IX Rule 13 C.P.C.
read with Section 151 C.P.C. for setting
aside the judgment and decree dated
31.8.1988 on the ground that the said suit
has been decided ex-parte.

7. The aforesaid recall application was
not supported by any affidavit nor any
application
under
Section
5
of
the
Limitation Act was filed and even no
prayer to condone the delay in filing the
recall
application
was
made.
The
application for setting aide the judgment
and decree dated 31.8.1988 was strongly
contested by the petitioner and respondent
Nos.1 to 3 failed to show any Rule or Law
which could facilitate the court to set aside
the judgment and order dated 31.8.1988
and consequently, the court rejected the
application vide order dated 8.4.1994.

8. After passing of the order dated
8.4.1994,
the
remedy
open
to
the
respondent Nos.1 to 3 was to prefer an
appeal under Section 331 (4) of the U.P.
Zamindari Abolition and Land Reforms
Act, but the respondents chose to file an
application under Section 151 C.P.C. on
29.4.1994 with the prayer that the order
dated 8.4.1994 may be reviewed and the
ex-parte
judgment
and
order
dated
31.8.1989 may be set aside and the suit
may be decided on its respective merits.

9. In the above said application, no
affidavit was appended and the same
ground as was taken earlier in the
application so preferred under Order 9 Rule
13 C.P.C., which had been decided and
rejected on 8.4.1994. The land in question
came under consolidation operation and
notification under Section 4 of the U.P.
Consolidation of Holdings Act was issued
and published in the U.P. Gazette on
9.4.1994.

10. The application preferred by the
respondent Nos.1 to 3 on 20.4.1994 was
decided on 20.7.1994 and the decree and
order dated 31.8.1988 was set aside.

11. The petitioners have filed the
present writ petition challenging the order
dated 20.7.1994 (Annexure-7 to the writ
petition), passed by the respondent No.5 as
also last line of the order dated 20.7.1994
(Annexure-6 to the writ petition), after
summoning the record.

12.
Assailing
he
order
dated
20.7.1994, submission of learned counsel
for the petitioners is that since village
Bhishampur
Kumhrawan,
Tehsil
Malihabad, District Lucknow has been
brought under consolidation operations and
notification to that effect was published on
9.4.1994 and thus, even if the proceedings
had been pending, they would have abated
but in the instant matter on 8.4.1994, the
application so preferred by respondent
Nos.1 to 3 for setting aside the order dated
31.8.1988 was rejected and thus on
9.4.1994 nothing was pending.
11 All. Kalloo Vs. State of U.P.
95

13. Second submission is that village
has been brought under consolidation
operations vide notification dated 9.4.1994,
the respondent No.5 lost all control over
the proceedings and thus, he acted illegally
and without authority of law in entertaining
the application and then setting aside the
judgment and decree dated 31.8.1988 vide
judgment and order dated 20.7.1994.

14. Third submission is that the
petitioners
are
in
continuous
and
uninterrupted possession over the land in
question since before 1356 fasli and have
become Bhumidhars by operation of law. It
is further submitted that the respondent
Nos.1 to 3 could not have invoked the
jurisdiction under Section 151 C.P.C. for
the same relief for which they had earlier
moved an application under Order IX Rule
13 C.P.C. read with Section 151 C.P.C.
which had been rejected and thus, the
second application for same cause was
barred by res-judicata.

15. Next submission is that inherent
powers so provided under Section 151
C.P.C. can only be invoked where there is
no other alternative remedy before the
aggrieved party but in the instant case,
remedy open to the respondents was prefer
an appeal under Section 331 (4) of the U.P.
Zamindari Abolition and Land Reforms
Act.

16. On the other hand, learned
Standing Counsel states that the respondent
has not committed any mistake in passing
the impugned order dated 20.7.1994. The
same is just and valid and does not suffer
from any infirmity or illegality.

17. After having heard the rival
contention of learned counsel for the
parties, I perused the material on record.

18. It is reflected that at earlier point
of time, the respondent Nos.1 to 3 moved
an application under Order 9 Rule 13
C.P.C. read with Section 151 C.P.C. before
the
authority
concerned,
which
was
rejected vide order dated 8.4.1994 and the
remedy available to the respondent Nos.1
to 3 was that they would have filed an
appeal under Section 331 (4) of the U.P.
Zamindari Abolition and Land Reforms
Act, but they chose the file an application
under Section 151 C.P.C., which is barred
by res-judicata. In the opinion of the Court,
the argument advancedb y the learned
counsel for the petitioner has substance.
The respondent Nos.1 to 3 having no
jurisdiction to move an application under
Section 151 C.P.C. before the revenue
authority for setting aside the order passed
on 20.7.1994.

19. On perusal of the record, it is also
reflected that a notification under Section 4
of Consolidation of Holdings Act was
issued by the State Government on
9.4.1994, therefore, the power to entertain
the application by other modes were not
available to respondent Nos.1 to 3 due to
abating of the proceedings, thus, the
respondent acted illegally and without
authority of law in entertaining the
application and setting aside the judgment
and decree dated 31.8.1988 vide judgment
and order dated 20.7.1994. this action of
the respondent is illegal and suffers from
vices of rule of law.

20. The inherent power so provided
under Section 151 C.P.C. can only be
invoked where there is no alternative
remedy before the aggrieved party, but in
the instant case, the remedy was to file an
appeal under Section 331 (4) of the U.P.
Zamindari Abolition and Land Reforms
Act, therefore, the order passed on the
96 INDIAN LAW REPORTS ALLAHABAD SERIES
application filed under Section 151 C.P.C.
is wholly without jurisdiction and is liable
to be set aside.

21. The otherwise argument advanced
by learned counsel for the respondent has
no force of law, therefore, it is hereby
rejected.

22. In view of the above, in the
considered opinion of the Court, the order
impugned
being
wholly
without
jurisdiction, suffers from vices of resjudicata, therefore, is not sustainable in law
and is hereby set aside. The writ petition
succeeds and is allowed.

23. No order as to cost.

24. Connected writ petition(s) may be
de-linked.
----------
(2024) 11 ILRA 96
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.11.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.
THE HON'BLE VIPIN CHANDRA DIXIT, J.

Income Tax Appeal No. 85 of 2024

Pr. CIT, Bareilly, U.P. ...Appellant
Versus
Dharam Singh ...Respondent

Counsel for the Appellant:
Sri Manu Ghildyal, Advocate

Counsel for the Respondent:
Sri Ambleshwar Pandey & Sri Ramesh
Kumar, Advocates

Tax Law - Income Tax Act, 1961 - Sections
143(3) & 263 - Assessment Years 2017-
18 - Appeal against order of Appellate
Tribunal by Commissioner - Assessment
order completed by Assessing Officer -
Subsequently, PCIT by exercising his
jurisdiction revised order on ground that
assessment was prejudicial to interest of
revenue, set aside assessment order,
directed for de novo assessment - Order
was challenged before Tribunal and held
that inquiries by Assessing Officer in
respect of cash deposit of Rs.91 lakhs was
proper and thereafter assessment order
was passed. (Para 3)

Held, Tribunal has gone into details of
questionnaire issued by Assessing Officer,
examined inquiry carried out by Assessing
Officer in detail and thereafter, held in
favour of assessee, examined replies given
by assessee - Tribunal concluded that it
was
not
possible
under
any
circumstances to conclude that Assessing
Officer misstated fact or recorded false
order sheet entries and further held that
only conclusion was that allegation made
by PCIT that
Assessing
Officer
not
recorded any finding with regard to cash
deposit during demonetization period,
was not based on material on record -
Twin conditions of assessment order
being
erroneous
and
prejudicial
to
interest of revenue in order to invoke
power by PCIT u/s 263 of Act was not
fulfilled as Assessing Officer made all
inquiries and verifications as per law.
(Para 7)

Thus, no perversity in impugned order as
no substantial question of law involved,
accordingly appeal dismissed. (Para 16)

Appeal Dismissed. (E-13)

List of Cases cited:

1. Chunilal Vs Mehta and Sons Ltd. Vs Century
Spg. & Mfg. Co. Ltd. reported in 1962 SCC
OnLine SC 57, (Para 6)

2. Pr. CIT Vs Bhadani Financiers Pvt. Ltd.
reported in (2022) 447 ITR 305, (Para 7)

3. Arulvelu Vs St.reported in (2009) 10 SCC 206,
(Para 24 to 27)