# Madhaw Asharam Chairitable Trust Hanuman Mandir & Anr v. Shri Shamshul Khuda Khan

- **Citation:** (2019) 2 ILRA 1801
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-07
- **Case number:** Writ C No. 16842 of 2014
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/madhaw-asharam-chairitable-trust-hanuman-mandir-anr-v-shri-shamshul-khuda-khan-44676
- **Pages:** 9

## Headnote

A. Code of Civil Procedure - Order XVI
Rule 17 - amendment sought at the
stage of appeal - changing the nature of
the case, application for amendment
rightly rejected.

Held :- In the case at hand, the court below
upon due consideration of the facts of the case
has
come
to
the
conclusion
that
the
amendment which was being sought, at the
stage of appeal, would have the effect of
changing the very nature of the case, and the
application for amendment having been rejected
for the said reason, the order passed by the Trial
Court cannot be faulted with. (Para 19)

B.
In
view
of
the
authoritative
pronouncement made in the case of
Radhey Shyam & Anr. Vs. Chhabi Nath &
Ors. 3 judicial orders passed by civil courts
are not amenable to a writ of certiorari
under Article 226, and for this reason also
the writ petition which has been filed
against a judicial order passed in a
pending civil appeal, would fail. (Para 20)

Writ Petition rejected (E-9)

List of Cases Cited: -

## Text

2 All. Madhaw Asharam Charitable Trust Hanuman Mandir & Anr. Vs Shri Shamshul Khuda Khan 1801

36. Counsel for the petitioner has
not
been
able
to
dispute
the
aforementioned legal position.

37. No other argument was raised.

38. The writ petition is accordingly
held to be devoid of merits and is
accordingly dismissed.
----------

(2019)10ILR A 1801

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 07.08.2019

BEFORE
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ C No. 16842 of 2014

Madhaw Asharam Chairitable Trust
Hanuman Mandir & Anr. ...Petitioners
Versus
Shri Shamshul Khuda Khan...Respondent

Counsel for the Petitioners:
Sri Vijay Shankar Singh, Sri Pankaj
Dwivedi.

Counsel for the Respondent:
S.C., Sri Hriyada Narain Mehrotra, Sri
Maha Prasad, Sri Nitin Sharma, Sri Syed
Farman Ahmad Naqvi, Sri S. Faizan
Ahmad, Sri Utpal Chatterji.

A. Code of Civil Procedure - Order XVI
Rule 17 - amendment sought at the
stage of appeal - changing the nature of
the case, application for amendment
rightly rejected.

Held :- In the case at hand, the court below
upon due consideration of the facts of the case
has
come
to
the
conclusion
that
the
amendment which was being sought, at the
stage of appeal, would have the effect of
changing the very nature of the case, and the
application for amendment having been rejected
for the said reason, the order passed by the Trial
Court cannot be faulted with. (Para 19)

B.
In
view
of
the
authoritative
pronouncement made in the case of
Radhey Shyam & Anr. Vs. Chhabi Nath &
Ors. 3 judicial orders passed by civil courts
are not amenable to a writ of certiorari
under Article 226, and for this reason also
the writ petition which has been filed
against a judicial order passed in a
pending civil appeal, would fail. (Para 20)

Writ Petition rejected (E-9)

List of Cases Cited: -

1. M. Revanna Vs Anjanamma & ors., (2019)4 SCC 332

2. Vijay Hathising Shah & anr. Vs Gitaben
Parshottamdas Mukhi & ors., (2019) 5 SCC 360

3. Radhey Shyam & anr. Vs Chhabi Nath &
ors., (2015) 5 SCC 423

4. Chander Kanta Bansal Vs Rajinder Singh
Anand, (2008) 5 SCC 117

5.
Revajeetu
Builders
&
Developers
Vs
Narayanaswami & Sons & ors., (2009) 10 SCC 84

6. Vijay Hathising Shah & anr. Vs Gitaben
Parshottamdas Mukhi & ors., (2019) 5 SCC 360

7. Hari Narayan Vs Shanti Dev, S.C.C. Revision
Defective No.49/2019

8. Ma Shew Mya Vs Maung Mo Hnaung, AIR
1922 PC 249

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri Pankaj Dwivedi,
Advocate holding brief of Sri Vijay
Shankar Singh, learned counsel for the
1802 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioners and Sri Utpal Chatterji, learned
counsel
appearing
for
the
legal
representatives of the sole respondent
(deceased).

2. Counsel for the parties have
agreed that the petition may be disposed
of at the stage of admission.

3. By means of the present petition
filed under Article 226 of the Constitution
of India a writ in the nature of certiorari
has been sought for quashing the order
dated
04.12.2013
passed
by
the
Additional District Judge, Meerut in Civil
Appeal No.14 of 2011 whereby the
amendment
application
(Application
No.94Ka) has been rejected.

4. The order impugned records that
the amendment sought at the stage of
appeal would have the effect of changing
the very nature of the suit and for the said
reason the amendment application has
been rejected.

5. Contention of the counsel for the
petitioners is that by means of the
amendment application a typographical
error was sought to be rectified and as
such the same ought to have been allowed
in the interest of justice.

6. Sri Utpal Chatterji, learned
counsel for the legal heirs of the sole
respondent submits that the amendment
which was being sought at the stage of
appeal would change the very nature of
the suit and as such the same has rightly
been rejected by the court below.
Moreover, it is submitted that in view of
the proviso to Order XVI, Rule 17 the
amendment was not permissible in the
absence of the petitioners being able to
show that in spite of due diligence they
could not have raised the matter before
the commencement of trial. Reliance in
this regard has been placed on the
judgments in the case of M. Revanna Vs.
Anjanamma & Ors.1, Vijay Hathising
Shah & Anr. Vs. Gitaben Parshottamdas
Mukhi & Ors.2.

7. It is further submitted that the
present petition filed under Article 226 of
the Constitution against a judicial order
would not be maintainable in view of the
law laid down in the case of Radhey
Shyam & Anr. Vs. Chhabi Nath & Ors.3.

8. The rival contentions which fall
for consideration relate to the scope of the
powers of the Court to allow amendment
of pleadings under Order VI Rule 17 of
the Civil Procedure Code, 19084.

9. The purpose and object of rules
relating to pleadings being to decide the
real controversy between the parties and
not to punish them for their negligence,
the provisions relating to the amendment
of pleadings are usually to be liberally
construed with a view to promoting the
ends of justice and not for defeating them,
and consequently the courts generally
allow all amendments that may be
necessary
for
determining
the
real
question in controversy between the
parties.

10. The proviso to Rule 17 under
Order VI, as inserted by the Code of Civil
Procedure
(Amendment)
Act,
2002,
however, restricts and curtails the power
of the court to allow amendment of
pleadings by enacting that no application
for amendment is to be allowed after the
trial has commenced unless the court
comes to the conclusion that in spite of
due diligence, the party could not have
2 All. Madhaw Asharam Charitable Trust Hanuman Mandir & Anr. Vs Shri Shamshul Khuda Khan 1803
raised
the
matter
before
the
commencement of the trial.

11. The proviso to Rule 17, as per
the Amendment Act, 2002, has introduced
the "due diligence" test, which requires
that the court must be satisfied that in
spite of "due diligence" the party could
not discover the ground pleaded in the
amendment. The term "due diligence" has
been specifically used so as to provide a
test for determining whether to exercise
the
discretion
in
situations
where
amendment
is
being
sought
after
commencement of the trial.

12. The object of introducing the
proviso to Rule 17 was considered in the
case of Chander Kanta Bansal Vs.
Rajinder Singh Anand5, and it was held
as follows:-

"11. ...The proviso limits the
power to allow amendment after the
commencement
of
trial
but
grants
discretion
to
the
court
to
allow
amendment if it feels that the party could
not have raised the matter before the
commencement of trial in spite of due
diligence. It is true that the power to allow
amendment should be liberally exercised.
The liberal principles which guide the
exercise of discretion in allowing the
amendment are that multiplicity of
proceedings should be avoided, that
amendments which do not totally alter the
character of an action should be granted,
while care should be taken to see that
injustice and prejudice of an irremediable
character are not inflicted upon the
opposite
party
under
pretence
of
amendment.

12. With a view to shorten the
litigation and speed up the trial of cases
Rule 17 was omitted by amending Act 46
of 1999. This rule had been on the statute
for ages and there was hardly a suit or
proceeding where this provision had not
been used. That was the reason it evoked
much controversy leading to protest all
over the country. Thereafter, the Rule was
restored in its original form by amending
Act 22 of 2002 with a rider in the shape of
the proviso limiting the power of
amendment to some extent. The new
proviso lays down that no application for
amendment shall be allowed after the
commencement of trial, unless the court
comes to the conclusion that in spite of
due diligence the party could not have
raised
the
matter
before
the
commencement of trial. But whether a
party has acted with due diligence or not
would depend upon the facts and
circumstances of each case. This would,
to some extent, limit the scope of
amendment to pleadings, but would still
vest enough powers in courts to deal with
the unforeseen situations whenever they
arise.

13. The entire object of the said
amendment
is
to
stall
filing
of
applications for amending a pleading
subsequent to the commencement of trial,
to avoid surprises and the parties had
sufficient knowledge of the other's case. It
also helps in checking the delays in filing
the
applications.
Once,
the
trial
commences on the known pleas, it will be
very difficult for any side to reconcile. In
spite of the same, an exception is made in
the newly inserted proviso where it is
shown that in spite of due diligence, he
could not raise a plea, it is for the court to
consider the same. Therefore, it is not a
complete bar nor shuts out entertaining of
any later application. As stated earlier, the
reason for adding proviso is to curtail
delay and expedite hearing of cases.

x x x x x
1804 INDIAN LAW REPORTS ALLAHABAD SERIES

15. As discussed above, though
first part of Rule 17 makes it clear that
amendment of pleadings is permitted at
any stage of the proceeding, the proviso
imposes certain restrictions. It makes it
clear that after the commencement of
trial, no application for amendment shall
be allowed. However, if it is established
that in spite of "due diligence" the party
could not have raised the matter before
the commencement of trial depending on
the circumstances, the court is free to
order such application.

16. The words "due diligence"
has not been defined in the Code.
According to Oxford Dictionary (Edition
2006), the word "diligence" means careful
and persistent application or effort.
"Diligent" means careful and steady in
application to one's work and duties,
showing care and effort. As per Black's
Law
Dictionary
(18th
Edition),
"diligence" means a continual effort to
accomplish something, care; caution; the
attention and care required from a person
in a given situation. "Due diligence"
means the diligence reasonably expected
from, and ordinarily exercised by a person
who seeks to satisfy a legal requirement
or to discharge an obligation. According
to Words and Phrases by Drain-Dyspnea
(Permanent
Edition
13-A)
"due
diligence",
in
law,
means
doing
everything reasonable, not everything
possible.
"Due
diligence"
means
reasonable diligence; it means such
diligence as a prudent man would exercise
in the conduct of his own affairs.

17. It is clear that unless the
party takes prompt steps, mere action
cannot be accepted and file a petition after
the commencement of trial...."

13. The provisions contained under
Order VI Rule 17 proviso as introduced in
the year 2002 again came up for
consideration in the case of J. Samuel Vs.
Gattu Mahesh & Ors.6 wherein the
principles
relating
to
allowing
amendments under Order VI Rule 17
were reiterated and the object of the
proviso and the meaning and significance
of "due diligence" of the parties seeking
amendment
was
also
stated.
The
observations made in the judgment in this
regard as follows:-

"18. The primary aim of the
court is to try the case on its merits and
ensure that the rule of justice prevails. For
this the need is for the true facts of the
case to be placed before the court so that
the court has access to all the relevant
information in coming to its decision.
Therefore, at times it is required to permit
parties to amend their plaints. The court's
discretion to grant permission for a party
to amend his pleading lies on two
conditions, firstly, no injustice must be
done to the other side and secondly, the
amendment must be necessary for the
purpose of determining the real question
in controversy between the parties.
However, to balance the interests of the
parties in pursuit of doing justice, the
proviso has been added which clearly
states that:

"...no
application
for
amendment shall be allowed after the trial
has commenced, unless the court comes
to the conclusion that in spite of due
diligence, the party could not have raised
the matter before the commencement of
trial."

19. Due diligence is the idea
that reasonable investigation is necessary
before
certain
kinds
of
relief
are
requested. Duly diligent efforts are a
requirement for a party seeking to use the
adjudicatory mechanism to attain an
2 All. Madhaw Asharam Charitable Trust Hanuman Mandir & Anr. Vs Shri Shamshul Khuda Khan 1805
anticipated
relief.
An
advocate
representing someone must engage in due
diligence
to
determine
that
the
representations
made
are
factually
accurate and sufficient. The term "due
diligence" is specifically used in the Code
so as to provide a test for determining
whether to exercise the discretion in
situations of requested amendment after
the commencement of trial.

20. A party requesting a relief
stemming out of a claim is required to
exercise due diligence and it is a
requirement which cannot be dispensed
with. The term "due diligence" determines
the scope of a party's constructive
knowledge, claim and is very critical to
the outcome of the suit.

x x x x x

23. ...The entire object of the
amendment to Order VI Rule 17 as
introduced in 2002 is to stall filing of
application for amending a pleading
subsequent to the commencement of trial,
to avoid surprises and that the parties had
sufficient knowledge of other's case. It
also helps checking the delays in filing
the
applications.
[Vide
Aniglase
Yohannan v. Ramlatha [(2005) 7 SCC
534], Ajendraprasadji N. Pandey v.
Swami Keshavprakeshdasji N. [(2006) 12
SCC 1], Chander Kanta Bansal v.
Rajinder Singh Anand [(2008) 5 SCC
117],
Rajkumar
Gurawara
v.
S.K.
Sarwagi and Co. (P) Ltd. [(2008) 14 SCC
364], Vidyabai v. Padmalatha [(2009) 2
SCC 409 : (2009) 1 SCC (Civ) 563] and
Man Kaur v. Hartar Singh Sangha [(2010)
10 SCC 512 : (2010) 4 SCC (Civ) 239]."

14. Reference may also be had to the
judgment in the case of Revajeetu
Builders
and
Developers
Vs.
Narayanaswami and Sons & Ors.7
wherein some of the important factors
which may be kept in mind while dealing
with an application filed under Order VI
Rule 17 have been enumerated in the
following terms:-

"63. On critically analysing both
the English and Indian cases, some basic
principles emerge which ought to be taken
into consideration while allowing or
rejecting the application for amendment:

(1) whether the amendment
sought is imperative for proper and
effective adjudication of the case;

(2) whether the application for
amendment is bona fide or mala fide;

(3) the amendment should not
cause such prejudice to the other side
which cannot be compensated adequately
in terms of money;

(4) refusing amendment would
in fact lead to injustice or lead to multiple
litigation;

(5)
whether
the
proposed
amendment
constitutionally
or
fundamentally changes the nature and
character of the case; and

(6) as a general rule, the court
should decline amendments if a fresh suit
on the amended claims would be barred
by limitation on the date of application.

These are some of the important
factors which may be kept in mind while
dealing with application filed under Order
6 Rule 17. These are only illustrative and
not exhaustive.

64.
The
decision
on
an
application made under Order 6 Rule 17
is a very serious judicial exercise and the
said exercise should never be undertaken
in a casual manner. We can conclude our
discussion
by
observing
that
while
deciding applications for amendments the
courts must not refuse bona fide,
legitimate,
honest
and
necessary
amendments and should never permit
1806 INDIAN LAW REPORTS ALLAHABAD SERIES
mala fide, worthless and/or dishonest
amendments."

15. In a recent judgment in the case
of M. Revanna Vs. Anjanamma & Ors.1,
it has been held that after commencement
of trial amendment of pleadings is not
permissible except under conditions stated
in the proviso and the burden is on the
person seeking the amendment after
commencement of trial to show "due
diligence" on his part as contemplated
under
the
proviso.
The
relevant
observations in the judgment are as
follows:-

"7. Leave to amend may be
refused if it introduces a totally different,
new and inconsistent case, or challenges
the fundamental character of the suit. The
proviso to Order 6 Rule 17 CPC virtually
prevents an application for amendment of
pleadings from being allowed after the
trial has commenced, unless the court
comes to the conclusion that in spite of
due diligence, the party could not have
raised
the
matter
before
the
commencement of the trial. The proviso,
to an extent, curtails absolute discretion to
allow amendment at any stage. Therefore,
the burden is on the person who seeks an
amendment after commencement of the
trial to show that in spite of due diligence,
such an amendment could not have been
sought earlier. There cannot be any
dispute that an amendment cannot be
claimed as a matter of right, and under all
circumstances.
Though
normally
amendments are allowed in the pleadings
to avoid multiplicity of litigation, the
court needs to take into consideration
whether the application for amendment is
bona fide or mala fide and whether the
amendment causes such prejudice to the
other side which cannot be compensated
adequately in terms of money."

16. A similar view was taken in the
case of Vijay Hathising Shah & Anr. Vs.
Gitaben Parshottamdas Mukhi & Ors.2
wherein the order passed the High Court
setting aside the order of the Trial Court
rejecting the amendment application was
held to be unsustainable and the order of
the Trial Court was restored. The
observations made in the judgment are as
follows:-

"9. In our view, the trial court
was right in rejecting the application. This
we say for more than one reason. First, it
was wholly belated; second, Respondent
1-plaintiff
filed
the
application
for
amendment of the plaint when the trial in
the suit was almost over and the case was
fixed for final arguments; and third, the
suit could still be decided even without
there being any necessity to seek any
amendment in the plaint. In our view,
amendment in the plaint was not really
required for determination of the issues in
the suit."

17. The aforementioned legal
position has been reiterated in a recent
judgment of this Court in the case of Hari
Narayan Vs. Shanti Devi8.

18. As regards the question as to
whether an amendment can be allowed
when it introduces a totally different or a
new case, it is relevant to reiterate the
legally settled position that leave to
amend would be refused if it introduces a
totally different, new and inconsistent
case or changes the fundamental character
of the suit. Reference in this regard may
be had to the judgment of the Privy
2 All. Madhaw Asharam Charitable Trust Hanuman Mandir & Anr. Vs Shri Shamshul Khuda Khan 1807
Council in the case of Ma Shew Mya Vs.
Maung Mo Hnaung9:-

"...All rules of Court are nothing
but provisions intended to secure the proper
administration of justice and it is therefore
essential that they should be made to serve
and be subordinate to that purpose, so that
full powers of amendment must be enjoyed
and should always be liberally exercised,
but none the less no power has yet been
given to enable one distinct cause of action
to be substituted for another, not to change,
by means of amendment, the subject-matter
of the suit."

19. In the case at hand, the court
below upon due consideration of the facts
of the case has come to the conclusion
that the amendment which was being
sought, at the stage of appeal, would have
the effect of changing the very nature of
the
case,
and
the
application
for
amendment having been rejected for the
said reason, the order passed by the Trial
Court cannot be faulted with.

20. As regards the other objection raised
by the respondent with regard to the
maintainability of the writ petition under
Article 226 of the Constitution, it may be
noted that in view of the authoritative
pronouncement made in the case of Radhey
Shyam & Anr. Vs. Chhabi Nath & Ors.3
judicial orders passed by civil courts are not
amenable to a writ of certiorari under Article
226, and for this reason also the writ petition
which has been filed against a judicial order
passed in a pending civil appeal, would fail.
The relevant observations made in the
aforementioned judgment of Radhey Shyam
(supra) are as follows:-

"25. It is true that this Court has
laid down that technicalities associated
with the prerogative writs in England
have
no
role
to
play
under
our
constitutional scheme. There is no parallel
system of King's Court in India and of all
other courts having limited jurisdiction
subject to supervision of King's Court.
Courts are set up under the Constitution
or the laws. All courts in the jurisdiction
of a High Court are subordinate to it and
subject to its control and supervision
under Article 227. Writ jurisdiction is
constitutionally conferred on all High
Courts.
Broad
principles
of
writ
jurisdiction followed in England are
applicable to India and a writ of certiorari
lies against patently erroneous or without
jurisdiction
orders
of
tribunals
or
authorities or courts other than judicial
courts. There are no precedents in India
for High Courts to issue writs to
subordinate courts. Control of working of
subordinate courts in dealing with their
judicial orders is exercised by way of
appellate or revisional powers or power of
superintendence
under
Article
227.
Orders of civil court stand on different
footing from the orders of authorities or
tribunals or courts other than judicial/civil
courts. While appellate or revisional
jurisdiction is regulated by statutes, power
of superintendence under Article 227 is
constitutional. The expression "inferior
court" is not referable to judicial courts, as
rightly observed in the referring order in
paras 26 and 27 quoted above.

26. The Bench in Surya Dev Rai
v. Ram Chander Rai [(2003) 6 SCC 675]
also observed in para 25 of its judgment
that distinction between Articles 226 and
227 stood almost obliterated. In para 24 of
the said judgment distinction in the two
articles has been noted. In view thereof,
observation that scope of Article 226 and
227 was obliterated was not correct as
rightly observed by the referring Bench in
1808 INDIAN LAW REPORTS ALLAHABAD SERIES
Para 32 quoted above. We make it clear that
though despite the curtailment of revisional
jurisdiction under Section 115 CPC by Act
46 of 1999, jurisdiction of the High Court
under Article 227 remains unaffected, it has
been wrongly assumed in certain quarters
that the said jurisdiction has been expanded.
Scope of Article 227 has been explained in
several decisions including Waryam Singh
v. Amarnath [AIR 1954 SC 215 : 1954 SCR
565], Ouseph Mathai v. M. Abdul Khadir
[(2002) 1 SCC 319], Shalini Shyam Shetty
v. Rajendra Shankar Patil [(2010) 8 SCC
329 : (2010) 3 SCC (Civ) 338] and Sameer
Suresh Gupta v. Rahul Kumar Agarwal
[(2013) 9 SCC 374 : (2013) 4 SCC (Civ)
345]. In Shalini Shyam Shetty this Court
observed: (SCC p. 352 paras 64-67)

"64.
However,
this
Court
unfortunately discerns that of late there is
a growing trend amongst several High
Courts to entertain writ petition in cases
of pure property disputes. Disputes
relating to partition suits, matters relating
to execution of a decree, in cases of
dispute between landlord and tenant and
also in a case of money decree and in
various other cases where disputed
questions of property are involved, writ
courts are entertaining such disputes. In
some cases the High Courts, in a routine
manner, entertain petitions under Article
227 over such disputes and such petitions
are treated as writ petitions.

65. We would like to make it
clear that in view of the law referred to
above in cases of property rights and in
disputes between private individuals writ
court should not interfere unless there is
any infraction of statute or it can be
shown that a private individual is acting
in collusion with a statutory authority.

66. We may also observe that in
some High Courts there is a tendency of
entertaining petitions under Article 227 of
the Constitution by terming them as writ
petitions. This is sought to be justified on
an erroneous appreciation of the ratio in
Surya Dev and in view of the recent
amendment to Section 115 of the Civil
Procedure Code by the Civil Procedure
Code (Amendment) Act, 1999. It is urged
that as a result of the amendment, scope
of Section 115 CPC has been curtailed. In
our view, even if the scope of Section 115
CPC is curtailed that has not resulted in
expanding the High Court's power of
superintendence. It is too well known to
be reiterated that in exercising its
jurisdiction, High Court must follow the
regime of law.

67. As a result of frequent
interference by the Hon'ble High Court
either under Article 226 or 227 of the
Constitution with pending civil and at
times criminal cases, the disposal of cases
by the civil and criminal courts gets
further impeded and thus causing serious
problems in the administration of justice.
This Court hopes and trusts that in
exercising its power either under Article
226 or 227, the Hon'ble High Court will
follow
the
time-honoured
principles
discussed above. Those principles have
been formulated by this Court for ends of
justice and the High Courts as the highest
courts of justice within their jurisdiction
will adhere to them strictly."

27. Thus, we are of the view
that judicial orders of civil courts are not
amenable to a writ of certiorari under
Article 226. We are also in agreement
with the view of the referring Bench that a
writ of mandamus does not lie against a
private person not discharging any public
duty. Scope of Article 227 is different
from Article 226.

x x x x x

29. Accordingly, we answer the
question
referred
as
follows:
2 All. Raghuraj alias Ruggan & Ors. Vs State of U.P. & Ors.
1809

29.1. Judicial orders of civil
court are not amenable to writ jurisdiction
under Article 226 of the Constitution.

29.2. Jurisdiction under Article
227 is distinct from jurisdiction from
jurisdiction under Article 226."

21. Counsel for the petitioners has
not
been
able
to
dispute
the
aforementioned legal position and has
also not been able to point out any
material error or illegality in the order
passed by the court below so as to warrant
interference.

22. It has also been pointed out that
the
sole
respondent
has
died
on
07.01.2018 and no steps have been taken
by the petitioners to cause the legal
representatives
of
the
deceased
respondent to be made a party in the
proceedings.

23. The petition thus lacks merit and
is accordingly dismissed.
----------

(2019)10ILR A 1809

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.09.2019

BEFORE
THE HON'BLE SIDDHARTHA VARMA, J.

Writ C- No. 35741 of 2018

Raghuraj alias Ruggan & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Ajai Shankar Pathak, Sri Prateek Tyagi.

Counsel for the Respondents:
C.S.C., Sri Mahesh Narain Singh, Sri
Pankaj Kumar Srivastava, Sri Uday Pratap
Singh, Sri Kundan Rai.

A. U.P. Consolidation of Holding Act,
1953 - Section 28, 52-A -While deciding
Application u/s 28-Consolidator's report
to be read and matched with the UP-CH
Forms 41 and 45. If no ingress and
egress for a plot-provisions of section
52-A of the Act to apply.

Writ Petition allowed (E-9)

(Delivered by Hon'ble Siddhartha Varma, J.)

1. This writ petition has been filed
against the order dated 19.7.2018 passed
by the Additional District Magistrate
(Administration), Meerut in proceeding
under section 28 of the U.P. Land
Revenue Act, 1901 and against the order
dated 4.10.2018 passed by the Additional
Commissioner
(Judicial)-4th,
Meerut
Region, Meerut.

2. The respondent no.5 filed an
application under section 28 of the U.P.
Land Revenue Act before the District
Magistrate, Meerut and prayed that in the
map, the land which had been shown as a
chak marg in between his plot nos.502
and 564 and which was running from
North to South be removed from the final
maps. The petitioners were arrayed as
respondents in the case. They filed their
objection to the application filed by the
respondent no.5 on 26.3.2015 and a report
was called for by the Additional District
Magistrate from the Consolidator who
submitted his report on 13.3.2015. This
report was also objected to by the
petitioners.
However,
when
the
respondent no.3 on 27.3.2015 accepted
the report dated 13.3.2015, the petitioners
preferred a Revision which was allowed