# Mahendra Kumar & Ors v. Chhawali Devi & Ors

- **Citation:** (2023) 6 ILRA 425
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-28
- **Case number:** First Appeal From Order No. 2300 of 2011
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-kumar-ors-v-chhawali-devi-ors-50482
- **Pages:** 11

## Headnote

A. Civil Law - Civil Procedure Code, 1908Order 41 Rule 21-In the present case, the
appeal
was
transferred
before
the
respondents put their appearance in court
and notice had already been issued by the
parent court and it was found sufficiently
served for final hearing-The case was
taken up in the transferee court on the
date fixed but no one appeared-the
appellant had notice of the next date fixed
prior to the transfer of the appeal-there
was no occasion before the transferee
court to examine as to whether the
defendants have knowledge of transfer of
426 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter or not-Therefore, the first
situation as contemplated under Rule 89 A
of General Rule Civil does not arise in the
present case-Second situation, party being
unrepresented
had
been
satisfied
as
notice was found duly served upon the
appellants and the excuse taken by the
appellant that he began to reside in
Ghaziabad continuously for 13- 14 years
after filing of the written statement in the
original suit has been exposed to falsityHence, it cannot be said that the appellant
had no knowledge about the pending
appeal-He appears to have not come with
clean hands. (Para 1 to 33)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

6 All. Mahendra Kumar & Ors. Vs. Chhawali Devi & Ors.
425

42. Thus the objection that the matter
should have been raised in the petition
under Section 482 CrPC does not stand to
appeal and fails. Once the petitioner has
approached this Court with promptitude
under Article 226 of the Constitution, the
prayer made by the petitioner can be
moulded and considered by taking aid of
Article 227 or Section 482 Cr.P.C. as these
are the concomitant powers of the High
Court itself. In appropriate cases the power
under Article 226 for imparting complete
justice
stands
strengthened
by
the
supervisory or inherent jurisdiction of this
Court provided under Article 227 or
Section
482
CrPC deserving
to
be
exercised sparingly.

43. Having applied our mind to the
contents of the FIR as well as the
investigation, as recorded above, the
impugned FIR as well as the investigation
held in pursuance thereof being based on
the abuse of the process of law and guided
by mala fide exercise of power does not
stand in the eye of law and the same
deserves to be quashed.

44. Accordingly the impugned FIR
dated 18.2.2021 registered against the
petitioner as Case Crime No. 56 of 2021
under Section 409, 420 IPC at Police
Station Chowk, District Lucknow as well
as the police report submitted in pursuance
thereof under Section 409 read with
Section 120-B and 201 IPC including the
summon issued by the competent court
based thereon, if any, are quashed. The
Executive
Council
upon
a
fresh
consideration in terms of the subsequent
resolution dated 27.6.2020, if so chosen,
may consider the whole issue in the light of
observations
made
hereinabove
and
proceed accordingly in the matter in
accordance with law.

45. Before parting, we hope that the
university
authorities
shall
remain
committed
to
the
upgradation
of
educational standards and work collectively
to
boost
the
educational
values
by
respecting the policy decisions taken for
the welfare of the institution. Discipline in
education and administration both must be
achieved in order to avoid undue conflicts.

46. Resultantly, the writ petition is
allowed. No order as to cost.
----------
(2023) 6 ILRA 425
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 28.04.2023

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

First Appeal From Order No. 2300 of 2011

Mahendra Kumar & Ors. ...Appellants
Versus
Chhawali Devi & Ors. ...Respondents

Counsel for the Appellants:
Sri Nitin Kumar Agrawal, Sri Hari Om Yadav

Counsel for the Respondents:
Sri Uma Nath Pandey, Sri Ashok Gupta, Sri
Kuldeep Kumar

A. Civil Law - Civil Procedure Code, 1908Order 41 Rule 21-In the present case, the
appeal
was
transferred
before
the
respondents put their appearance in court
and notice had already been issued by the
parent court and it was found sufficiently
served for final hearing-The case was
taken up in the transferee court on the
date fixed but no one appeared-the
appellant had notice of the next date fixed
prior to the transfer of the appeal-there
was no occasion before the transferee
court to examine as to whether the
defendants have knowledge of transfer of
426 INDIAN LAW REPORTS ALLAHABAD SERIES
the matter or not-Therefore, the first
situation as contemplated under Rule 89 A
of General Rule Civil does not arise in the
present case-Second situation, party being
unrepresented
had
been
satisfied
as
notice was found duly served upon the
appellants and the excuse taken by the
appellant that he began to reside in
Ghaziabad continuously for 13- 14 years
after filing of the written statement in the
original suit has been exposed to falsityHence, it cannot be said that the appellant
had no knowledge about the pending
appeal-He appears to have not come with
clean hands. (Para 1 to 33)

The appeal is dismissed. (E-6)

List of Cases cited:

1. Ram Padarath & anr. Vs Smt. Chiraunji Devi
(2015) 2 ADJ 619

2. Haryana Suraj Malting Ltd Vs Phool Chand
(2018) 16 SCC 567 Smt. Poonam Gupta & ors.
Vs Anil Agarwal (2019) 2 ADJ 768

3. Sikandar Vs Akhalak (2008) 2 ARC 231

4. Ashutosh Shrotriya Vs Rais Uddin (1994) 24
ALR 28

5. Chandra Bhan Srivastava Vs Smt. Prema
Srivastava (1996) 27 ALR 175

6. Akttaryar Khan Vs Azhar Yar Khan (1994) All
LJ 690

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Nitin Kumar Agrawal,
learned
counsel
for
the
defendantappellants, Sri Uma Nath Pandey, learned
counsel for the plaintiff-respondents and
perused the material as brought on record.

2. The first appeal from order has
been preferred by the defendant-appellant
against the judgment and order dated
05.04.2011 passed by the Additional
District Judge, Court No.8, Bulandshshr, in
Misc. Case No.7 of 2008 filed under Order
41 Rule 21 of the Civil Procedure Code
1908, in Civil Appeal No.204 of 2002, Smt.
Chawali Devi and others Vs. Mahendra and
others, whereby the application under
Order 41 Rule 21 CPC filed against the ex
parte decree in the aforesaid civil appeal
no.204 of 2002 has been rejected.

3. Contention, in brief, has been
floated to the ambit that in this case, it so
happened that at the initial stage, a
declaratory original suit no.97 of 1983 was
instituted by Smt. Chawali Devi wife of
late Makkhan Lal and four others (Mahesh
Kumar, Kamal Kumar, Rakesh Kumar and
Yogesh Kumar) against the appellant
Mahendra Kumar and five others. In the
suit, notice was issued to the defendants
which was duly served upon them.
However, the written statement was filed
by the defendants, in particular, the present
appellant
Mahendra
Kumar
(since
deceased) and it was urged and claimed
that some oral assurance was given by the
plaintiff-respondents that it being the
dispute between family members, the suit
shall be withdrawn. Thereafter, defendantappellant went to Ghaziabad and began to
reside there for 13-14 years. In Ghaziabad,
the appellant suffered from many ailments /
diseases. He came back to Bulandshahr on
13.02.2008 when Subhash and Rakesh told
him that the cinema hall is going to be sold
by the respondents - Mahesh Kumar,
Kamal Kumar, Rakesh Kumar and Yogesh
Kumar as they have won litigation.
Thereupon, the appellant being anxious
contacted his counsel in Bulandshahr and
enquired about the original suit no.97 of
1983 whereupon it transpired that the
original suit was dismissed on 18.09.2002
6 All. Mahendra Kumar & Ors. Vs. Chhawali Devi & Ors.
427
against which an appeal was preferred by
the aforesaid plaintiff-respondents which
appeal was numbered 204 of 2002.

4. Learned counsel proceeded further
that upon inspection of the record, the
appellant came to know about fake service
of notice upon him after obtaining fake
signature of the appellant Mahendra Kumar
on the notice, the appeal proceeded ex parte
against the appellant. Service of notice is
denied as notice was never received by the
appellant.
Notice
sent
to
the
other
respondents is highly suspicious and
service upon them is doubtful. It was
incumbent for the lower appellate court to
have matched specimen signature of the
appellant brought on record by placing
several documents as copies of the income
tax returns whereupon the appellant had
made his signature and the two signatures
on income tax returns do not match with
signature of the appellant as endorsed upon
notice.

5. Filing of the rejoinder affidavit is
not mandatory but discretionary and would
not adversely affect the case of the
appellant and the lower appellate court
wrongly held that the objection / counter
affidavit filed by the plaintiff-respondents
has not been rebutted by filing any
rejoinder affidavit.

6. Learned counsel for the appellants
has added that insofar the judgment, order
and decree dated 05.04.2011 passed by the
lower appellate court is concerned, the
appeal was transferred by the District
Judge, Bulandshahr to the other courts of
the Additional District Judges, Bulandshahr
where it proceeded ex parte without
ensuring compliance of Rule 89A of
General
Rules
(CIVIL)
1957
which
provides that in case proceeding of a case is
transferred to another court, then in case
parties are represented then either of the
party or his/her counsel will be informed
about the transfer before proceeding with
the case and in case a party is not
represented then notice shall be sent to him
prior to proceeding further with the case. In
this case, transferee court bypassed above
procedure and compliance of Rule 89A of
General Rules (CIVIL) 1957 has not been
ensured and notice has not been sent by the
transferee court to the appellant, it
proceeded ex parte and decided the civil
appeal no.204 of 2002 on 23.01.2008
thereby allowed the original suit and the
plaintiff-respondents were declared owner
of the property in question.

7. In support of his contention,
learned counsel for the appellants has
placed reliance on the decision of Hon'ble
Apex Court in the case of Haryana Suraj
Malting Ltd. Vs. Phool Chand, 2018 (16)
SCC 567. He also placed reliance on the
decisions of this Court in the case of Smt.
Poonam Gupta and others Vs. Anil
Agarwal 2019 2 ADJ 768, Sikandar Vs.
Akhalak 2008 (2) ARC 231, Ashutosh
Shrotriya Vs. Rais Uddin 1994 (24) ALR
238, Chandra Bhan Srivastava Vs. Smt.
Prema Srivastava 1996 (27) ALR 175,
Akttaryar Khan Vs. Azhar Yar Khan 1994
All.LJ 690.

8.

Learned
counsel
for
the
respondents has in reply submitted that in
this case, no doubt the suit was instituted
by Chawali Devi and the present answering
respondents for declaration of their right as
owner of the property in question which
property was separate property of Makkhan
Lal, who purchased it in court auction thus
became owner of the property. Upon his
death, the property devolved upon her wife
428 INDIAN LAW REPORTS ALLAHABAD SERIES
Chawali Devi who by will bequeathed the
property in favour of the plaintiffs. No oral
assurance, as claimed by the present
appellants, whatsoever, was given by the
plaintiffs that the suit will be withdrawn. It
is an afterthought of the appellant that some
oral assurance was given to withdraw the
suit. The entire family including the
plaintiffs and the appellant reside in Kala
Aam, Bulandshahr and the entire family is
well off. It is misleading to claim that the
appellant began to reside at Ghaziabad and
was unaware of development of the suit
and the appeal in question.

9. It has been further submitted that
notice was served upon the appellant
Mahendra
Kumar.
To
contend
that
signature on the notice was forged is
absolutely
unacceptable
under
circumstances of the case and to claim that
signature made upon notice did not match
with various signatures endorsed upon the
income tax returns would not serve the
purpose because signatures on various
income tax returns, on the face, are
different from each other and they do not
match inter se. How can it be accepted that
a man, who has left his native place where
the entire family resides and went to
Ghaziabad, resided there and did not return
back to Bulandshahr to meet his real
relatives.

10. Insofar as averments made in the
counter affidavit filed by the plaintiffrespondents in rebuttal of claim raised by
the appellant in his application under Order
41 Rule 21 CPC is concerned, the same
have not been specifically denied / rebutted
and no rejoinder affidavit filed (by the
appellant).

11.

Learned
counsel
for
the
respondents has proceeded further by
claiming that the aforesaid application
under Order 41 Rule 21 CPC was not
supported by separate affidavit as was
required but the affidavit filed in support of
the interim application alone was there.
Insofar as the application of Rule 89A of
General Rules (CIVIL) 1957 is concerned,
the same under facts and circumstances of
the case is not applicable, for the reason
that the appeal filed before the District
Judge, Bulandshahr is reflective of various
order-sheets and its outcome as such that
all the respondents were found to have been
served with the notice only then proceeding
started. Pursuant to the notice issued by the
District Judge, Bulandshahr in appeal, no
one turned up from the appellant (the
present appellant) side before the District
Judge, Bulandshahr. Since notice was
served prior to the transfer of the case and
no one appeared before the District Judge,
Bulandshahr, the case was transferred then
under circumstances there was no need for
the transferee court to issue fresh notice.
Had the appellant put in appearance before
the District Judge, Bulandshahr either
personally or through counsel only then
action would have arisen for information to
the appellant but the appellant did not
appear
before
the
District
Judge,
Bulandshahr on the date fixed.

12. Learned counsel adds that in this
case, facts are different which do not require
mandatory compliance of Rule 89A of
General Rules (CIVIL) 1957 and the entire
proceeding is indicative and suggestive of
fact that after filing of the written statement in
the suit, the appellant Mahendra Kumar for
reasons best known to him withdrew his
participation suo motu in the proceeding of
the suit and theory of "oral assurance" was
cleverly set up by him which aspect is not
supported by any material on record and it is
not inferred by circumstances, either.
6 All. Mahendra Kumar & Ors. Vs. Chhawali Devi & Ors.
429

13. Upon appeal being preferred
before the lower appellate court, notice was
sent to the appellant which was duly served
upon him, it bears his signature. The order
sheet of the lower appellate court is
reflective of that fact. On two occasions,
even some counsel participated in the
proceeding of the appeal as the order-sheets
of
the
lower
appellate
court
dated
06.12.2005, 15.12.2005 and 06.10.2006
proves it. Very cleverly, no Vakalatnama
was filed by the counsel (appearing for the
present appellant) in the proceeding of
appeal and all this was done for watching
the proceeding from outside the court.
Thus, circumstances of the case pointed out
deliberate avoidance of participation by the
appellant in the proceeding of the appeal.
In such circumstances, the lower appellate
court passed the impugned judgment, order
and decree dated 05.04.2011 which is just
and reasonable and requires no interference
by this Court.

14. In support of his claim, learned
counsel for the respondents has placed
reliance on the decision of this Court in the
case of Ram Padarath and another Vs. Smt.
Chiraunji Devi 2015 (2) ADJ 619, on the
point of mandatory compliance of Rule
89A of General Rules (CIVIL) 1957 but the
same is on different footing and not
applicable to the facts and circumstances of
this case.

15. Considered the submissions, as
well.

16. The appellant is aggrieved by the
judgment and order dated 05.04.2011
passed by the lower appellate court -
Additional District Judge, Court No.8,
Bulandshshar, in Misc. Case No.7 of 2008
on the application of appellant for recall of
order under Order 41 Rule 21 of the Civil
Procedure Code, 1908, in Civil Appeal
No.204 of 2002, Chawali Devi and others
Vs. Mahendra and others.

17. The chronological background of
this case as reflected from record appears to
be that a declaratory original suit no.97 of
1983 was instituted by Chawali Devi and
four others against the present appellant
and others in respect of the property located
in Bulandshahr, thereon a cinema hall had
been constructed. The suit was contested by
the appellant by filing written statement.
However, he absented himself from the
proceeding subsequently, therefore, the suit
proceeded ex parte against the appellant.
After considering the merit, the suit was
dismissed by the trial court with cost vide
judgment and order dated 18.09.2002,
against which an appeal was preferred by
the plaintiff-respondents before the District
Judge, Bulandshahr, whereupon the appeal
was numbered as civil appeal no.204 of
2002 Chawali Devi - wife of Makkhan Lal
and four others Vs. Mahendra Kumar and
others.

18. The order sheet of the lower
appellate court is reflective of fact that
notice was sufficiently served upon the
respondents. However, no one turned up
for the respondents before the lower
appellate court. Thereafter, the appeal was
transferred to the court of the Additional
District Judge, Bulandshahr. The transferee
court found that notice upon respondents
had been served and no one appeared on
their behalf, therefore, the proceeding was
directed to run ex parte against the
appellant-respondents.
Ultimately,
the
lower appellate court vide its judgment and
order dated 23.01.2008, allowed the appeal
ex parte and the judgement, order and
decree dated 18.09.2002 passed by the trial
court was set aside, the suit of the plaintiffs
430 INDIAN LAW REPORTS ALLAHABAD SERIES
was allowed and the plaintiffs were
declared owner of the property of the suit.

19. It has been claimed by the
appellant that he came to know about this
development
when
he
returned
Bulandshahr on 13.02.2008, then he was
informed by Subhash and Rakesh about the
judgment being pronounced. After due
inquiry, the appellant came to know about
the aforesaid judgment and order dated
23.01.2008 passed by the lower appellate
court.
Consequently,
he
moved
an
application under Order 41 Rule 21 CPC
for recall of the aforesaid order dated
23.01.2008 passed by the lower appellate
court, which application was registered as
misc. case no.7 of 2008 arising out of civil
appeal no.204 of 2002, as aforesaid. This
case was contested between the parties. The
plaintiff-respondents
filed
their
objections/counter affidavit. The lower
appellate court after considering the case
on merits vide judgment and order dated
05.04.2011 dismissed the aforesaid misc.
case. Hence this appeal.

20. Now the moot point involved for
adjudication before this Court pertains to
fact whether notice of the appeal (204 of
2002) was sufficiently served upon the
appellant, in particular, Mahendra Kumar
and whether the transferee court was bound
to act in compliance of Rule 89A of
General Rules Civil or the case was
different one?

21. Insofar as service of notice upon
the
appellant
is
concerned
and
the
explanation
given
by
the
appellant
regarding signature of the appellant on the
notice being forged and fake is not
supported by any cogent evidence or
circumstances so as to believe the claim of
the appellant that the signature of the
appellant on the notice is fake. The process
server has made an endorsement upon the
notice itself that notice was personally
served upon the appellant and it bore
signature of the
appellant Mahendra
Kumar.

22. Insofar as the claim regarding
comparison of the signature of the notice
with the signature of the income tax returns
as made by the appellant is concerned, the
same has been, out and out, opposed by the
respondents that the various signatures on
various income tax returns / papers are, on
the face, differently made and are not
identical. That being the case, how can a
worthy comparison be made between the
two signatures. Nothing has been added in
rejoinder by the learned counsel for the
appellant on this count before this Court.
Therefore,
contention
raised
by
the
respondents on the point of signatures on
the income tax returns filed by the
appellant being differently made is thus
found to be correct one and the same
(signatures on income tax returns) are not
identical. Moreover, it is wisdom of a
person to make endorsement upon any
notice sent by the court or any authority as
he wishes to make endorsement on it and
he can conveniently make it differently. It
can be observed with utmost ease that in
every case endorsement on a notice made
by a person would not necessarily match
with his official signature. He can make it
differently. It can be in English language,
Hindi language or in any other language.

23. On point of service of notice upon
the appellant, it appears that the other
family members say - Kusum Lata -
defendant-respondent no.9 who also resides
at Kala Aam Bulandshahr was was found to
have been sufficiently served with the
notice. Likewise, the other family members
6 All. Mahendra Kumar & Ors. Vs. Chhawali Devi & Ors.
431
of the appellants were also served. In case
the entire family had joint interest over the
property in question and any fraud had
been played by one of the members of the
joint family in making forged signatures on
the notice sent by the court, in that event
the other members of the family would
have rushed to the lower appellate court
and would have ventilated their grievance
and would have claimed in line with the
appellant that fraud had been played and
notice of appeal had never been received by
them. But no one except the appellant has
come up before the lower appellate court
by moving application under Order 41 Rule
21 CPC.

24. Initially, the suit was filed against
five defendants, the present appellant was
one among them. However, an application
under Order 41 Rule 21 CPC was moved
'solely' by the appellant and the other
defendants never challenged the judgment
and order dated 23.01.2008 passed by the
lower appellate court though it has been
claimed that interest of all family members
in property was joint.

25. Bare perusal of the order sheet of
civil appeal no.204 of 2002, makes it
obvious that notices have been sent to the
respondents including the present appellant
and the same were found to have been
sufficiently served upon them by the court
of the District Judge, Bulandshahr and the
date fixed was 23.09.2003 for final hearing
of the appeal, thereafter the case was
transferred. Therefore, it cannot be said that
the appellant had no notice of the date - say
23.09.2003 fixed by the District Judge,
Bulandshahr, for final hearing, prior to
transferring the proceeding of the misc.
case to another court. That being the case,
the next date fixed by the District Judge,
Bulandshahr was 23.09.2003. Therefore, it
was obligatory on the part of the appellant
to have put in appearance on 23.09.2003
and to take stock of the situation, but he did
not appear before the lower appellate court.
Thereafter, the transferee
court after
considering the above aspect of the case
rightly observed in the order dated
11.11.2003 that notice already served and
case already fixed for final hearing, notice
upon the respondents is sufficiently served
by the order of the predecessor. However,
no one turned up for the respondents before
the lower appellate court, therefore, the
proceeding was directed to run ex parte
against the respondents including present
appellant.

26. Now insofar as the factual issue of
assurance being extended by the plaintiffs
that the suit was promised to be withdrawn
by the plaintiffs as assured by them to the
appellant is concerned is merely a verbal
claim for various sanguine reasons; not
supported by any circumstances and
evidence.

26 (i) The suit was filed in the year
1983 wherein written statement was filed
by the appellant. Thereafter he absented
himself from the proceeding of the suit
after filing written statement. Assuming it
to be that any such oral assurance for
withdrawal of the suit was given by the
plaintiffs to the appellant then a man of
ordinary
prudence
would,
under
circumstances, shall be highly anxious to
know about the outcome of the suit -
whether the suit was withdrawn or not !

26 (ii) However, perusal of the record
shows that the suit was decided on
18.09.2002. It almost took two decades to
decide the suit, an ordinary man to whom a
promise was made previously by the
plaintiff-respondents for withdrawal of the
432 INDIAN LAW REPORTS ALLAHABAD SERIES
suit would take care to know about
outcome of the suit, but the appellant has
not elaborated on this aspect, this nonexplanation, on the face, is intriguing and
non-acceptable
under
facts
and
circumstances of the case. The conduct
shown by the present appellant would be
unbecoming of an ordinary prudent man.

26 (iii) The oral assurance given by
any person, if denied by that person,
requires to be established either by
preponderance
of
probability
or
by
evidence but in this case in hand
preponderance of probability works against
the appellant and favours the respondents
and there is no evidence, whatsoever,
regarding claim of oral assurance being
given by the plaintiff-respondents for
withdrawal of the suit, except the verbal
claim alone and that is not sufficient.

27. Therefore, on both counts, theory
of oral assurance being given by the
plaintiffs for withdrawal of the suit appears,
on the face, to be a false claim. Similarly,
the plea raised by the appellant in his
application under Order 41 Rule 21 CPC to
the ambit that he continuously resided in
Ghaziabad for 13-14 years after filing of
the written statement is not sustainable as
other family members were residing at
Kala Aam Bulandshahr. All these aspects
and circumstances cumulatively go to
establish that the appellant is very clever
and has not come with clean hands but he is
trying to explain unsuccessfully things
about fact of knowledge of the pending
appeal (204 of 2002) in roundabout
manner. It all connotes to fact that the
appellant appears to have been watching
the proceeding of the suit and appeal in
question from outside. Subsequently, he
moved application under Order 41 Rule 21
CPC within time after pronouncement of
the verdict by the lower appellate court on
23.01.2008, in favour of the plaintiffrespondents.

28. Insofar as contention of the
appellant regarding non-compliance of the
mandatory Rule 89A of General Rule Civil
is concerned to the import that after the
case was transferred by the parent court of
the District Judge, Bulandshahr to the court
of
the
Additional
District
Judge,
Bulandshahr, proper notice was required to
be given and after service of notice, the
transferee court would have proceeded
further but instead of doing that, the
transferee court proceeded ex parte and
pronounced the verdict vide its judgment
and order dated 23.01.2008 in civil appeal
no.204 of 2002.

29. In that regard, bare perusal of the
order sheet (of appeal) of the court of the
District Judge, Bulandshahr, primarily - the
order sheet dated 25.08.2003 and previous
order sheets cumulatively reflect on point
of service of notice sufficiently served
upon
the
respondents
and
the
date
23.09.2003 was the date fixed by the
District Judge, Bulandshahr, for final
hearing of the appeal. Thereafter, the case
was transferred by the District Judge to the
court of the Additional District Judge,
Bulandshahr.

30. It is noticeable that in spite of
service of notice upon respondents, no one
put in appearance on behalf of the
respondents
on 25.08.2003. However,
further date fixed was 23.09.2003 and the
case was transferred in the meanwhile. The
Presiding Officer of the transferee court
was on leave, however, no one appeared for
the either side on 23.09.2003 and on the
next date 11.11.2003, the transferee court
took notice of fact that no one appeared for
6 All. Mahendra Kumar & Ors. Vs. Chhawali Devi & Ors.
433
the respondents, however notice upon the
respondents was found sufficiently served
by his predecessor and he proceed to hear
the appeal ex parte against the respondents.
At this stage, it would be relevant to take
note of Rule 89A as enumerated in General
Rule Civil 1957, which is extracted as
below:

"89-A. Procedure to be followed
on transfer or withdrawal of cases.

"(1) When a case, i.e., a suit,
appeal or other proceedings in which a
date for attendance of a party or the parties
in a particular Court has been fixed, is
transferred from the Court to another, the
former Court shall record the order of
transfer in the order sheet and get it signed
by counsel of the party or parties, if any
party is unrepresented information shall be
sent to his registered address. The case
shall be called out by the other Court on
the date already fixed by the transferring
Court and the presence of the parties
noted.

(2) A note to the effect that a
party or the parties have been informed in
accordance with sub-rule (1) shall be made
on the record by the transferring Court.

(3) Where cases are transferred
in a large number the Court from which
they
are
transferred
shall,
besides
following the procedure laid down in subrule (1), draw up a list mentioning in it the
numbers and years of the cases and the
names of the parties and their counsel, and
shall cause one copy of it to be posted on
the notice board of the local bar
association for information of the members
of the bar and another copy to be posted on
the notice board of the Court for
information of the general public. It shall
also send to the other Court along with the
records of the transferred cases, a copy of
the list (or relevant extract of it); the other
Court shall post it on its own notice board.
If the other Court is situated in a different
place in which there is another bar
association, an extra copy of the list shall
be sent to it for being posted on the notice
board of the bar association.

(4) The Court to which cases are
transferred shall not proceed without
satisfying itself that the parties or their
counsel, as the case may be, have been
informed of the transfer.

(5) In sub-rules (1) to (4)
''transfer' includes withdrawal of a case."

31. The mandate reflected by the
aforesaid
Rule
is
workable
in
two
situations; first is whether the party or
parties is/are already represented in court;
the second situation is whether party is
unrepresented, thus in a situation when a
party is represented in a court and the case
is transferred from that court to another
court, former court shall record the order of
transfer in the order sheet and get
endorsement by the counsel for the party or
parties. If any party is unrepresented and
not served with notice then information
shall be given to him. What the transferee
court is required to ensure is the fact
whether the party or parties is/are aware of
the date fixed before proceeding on merits
in a transferred matter.

32. In the present case, the appeal was
transferred before the respondents put their
appearance in court and notice had already
been issued by the parent court and it was
found sufficiently served thus fixing
23.09.2003 for final hearing. The case was
taken up in the transferee court on the date
fixed 23.09.2003 but no one appeared
though the Presiding Officer was on leave.
That by itself would indicate that the
appellant had notice of the next date fixed
i.e. 23.09.2003 prior to the transfer of the
434 INDIAN LAW REPORTS ALLAHABAD SERIES
appeal. In such situation, there was no
occasion before the transferee court to
examine as to whether the defendants have
knowledge of transfer of the matter or not.
Therefore,
the
first
situation
as
contemplated under Rule 89 A of General
Rule Civil does not arise in the present
case.
Second
situation,
party
being
unrepresented had been satisfied as notice
was found duly served upon the appellants
and the excuse taken by the appellant that
he
began
to
reside
in
Ghaziabad
continuously for 13-14 years after filing of
the written statement in the original suit
no.97 of 1983 has been exposed to falsity
as
discussed
hereinabove.
In
such
circumstances, it cannot be said that the
appellant had no knowledge about the
pending appeal.

33. The other family members of the
present appellants who were residing at
Kala Aam, Bulandshahr were sufficiently
served and it is not the case of the appellant
that he had no communication with other
family members residing at Kala Aam,
Bulandshahr. How can it be accepted that
the appellant had no knowledge about
pendency of the appeal once notice was
found to have been duly served upon him
by the lower appellate court. In the
circumstances, it can be conveniently
observed that the defendant-appellant failed
to establish fact that he had no knowledge
of the proceeding of the appeal and he was
prevented from appearing in the court on
account of transfer of the appeal from the
court of the District Judge, Bulandshahr to
the court of the Additional District Judge,
Bulandshahr when the appeal was called
out for hearing. That being the case, the
principle of the aforecited case of Ram
Padarath and another Vs. Smt. Chiraunji
Devi 2015 (2) ADJ 619, by the plaintiffrespondents is very much attracted and
applicable in the present case, whereas, on
account of above discussion, it is obvious
that the following cases cited by the
appellant's counsel; Haryana Suraj Malting
Ltd. Vs. Phool Chand, 2018 (16) SCC 567.
He also placed reliance on the decisions of
this Court in the case of Smt. Poonam
Gupta and others Vs. Anil Agarwal 2019 2
ADJ 768, Sikandar Vs. Akhalak 2008 (2)
ARC 231, Ashutosh Shrotriya Vs. Rais
Uddin 1994 (24) ALR 238, Chandra Bhan
Srivastava Vs. Smt. Prema Srivastava 1996
(27) ALR 175, Akttaryar Khan Vs. Azhar
Yar Khan 1994 All.LJ 690, are not
applicable
to
the
given
facts
and
circumstances
of
the
present
case.
Therefore, the same are not helpful to the
appellant.

34. Before parting with the judgment,
it can be observed that bare perusal of the
record
is
replete
with
facts
that
predecessors of both the sides belonged to
the same family and there were a number
of litigation between and among them. One
such litigation can be referred as original
suit no.165 of 1942 Bhagwati Kunwar Vs.
Makkhan Lal which has been placed on
record of the trial court vide paper no.147C, the written statement was filed in the
aforesaid suit on 15.02.1943. Civil appeal
no.86 of 1943 Makkhan Lal Vs. Bhagwati
Kunwar, vide paper no.151-C, was also
preferred against the aforesaid outcome in
the
suit
wherein
judgement
was
pronounced on 08.11.1943. Apart from
that, a number of papers have been brought
on record whereby long-drawn litigation
between and among the family members of
the appellant and the respondents is very
much reflected. Therefore, in the present
case in hand it is obvious that the suit was
filed, the appellant himself did not care to
know about the outcome of the suit and
upon appeal being preferred by the
6 All. Sarita Verma & Anr. Vs. State of U.P. & Ors.
435
plaintiff-respondents, notice was sent to
him by the lower appellate court which
notice was found to have been sufficiently
served upon him. The circumstances
pointed out that the application under Order
41 Rule 21 CPC was moved by the
appellant within time, that goes to give
thrust to possibility and fact that the
appellant was watching the proceeding
from outside the court and he was
compelled to seek recall of the judgment of
the lower appellate court after delivery of
the judgment by the lower appellate court.
He appears to have not come with clean
hands.

35. In view of the discussion made
hereinabove, it is obvious that the appeal
lacks merit and the same is dismissed. In
turn, the judgment, order and decree dated
05.04.2011 passed by the lower appellate
court is hereby sustained.

36. It is observed that nothing has been
reflected by this Court on the merits of the
judgment and order (dated 23.01.2008)
passed by the lower appellate court and this
order is confined to the consideration of the
application under Order 41 Rule 21 CPC and
this appeal in hand.

37. Both the parties shall bear their
costs.
----------
(2023) 6 ILRA 435
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.02.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Habeas Corpus Writ Petition No. 20 of 2023

Sarita Verma & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Sharad Chand Rai

Counsel for the Respondents:
G.A., Sri Sanjay Singh

Civil Law - Constitution of India, 1950 -
Article
226,
-
Hindu
Minority
and
Guardianship Act, 1956 - Section 6 & 6-A,
: - Writ of Habeas Corpus - mother raised
question of Custody of two minor child from
their father - on rule nisi issued by court, both
minor corpus are produced in court - children
are themselves expressed tehri disinclination to
go and reside with their mother - Maintainability
- writ of Habeas Corpus is a prerogative writ and
an extraordinary remedy, it is writ of right and
not writ of course and may be granted only on
reasonable ground or probable cause being
shown - held, in custody of minor, writ of
habeas corpus would be maintainable wherein it
is established that the detention of minor child
by the parent or other is illegal and have no
authority of law - in present case, neither the
custody of minor with their father or grandparents appear to be unlawful in fact and
circumstances of the of the case as well as
under the provisions of the Guardianship Act,
- hence, prayer made in petition is rejected -
However, petitioner is at liberty to raise her
claim for custody of children at Family court
and all necessary claim are open to be raised
before the said forum - mother have
visitation rights over her children - directions
issued, petition is disposed of.(Para - 14, 15,
17)

Writ Petition Disposed of. (E-11)

List of Cases cited:

1. Syed Saleemuddin Vs Dr. Ruksana& ors.(2001
vol. 5 SCC 247),

2. Nithya Anand Raghavan Vs St. (NCT of Delhi)
(2017 vol. 8 SCC 454),

3. Kanu Sanyal Vs District Magistrate, Darjeeling
(1973 vol. 2 SCC 674),