# Makhan Singh v. XI A.D.J., Agra and others

- **Citation:** (2003) 2 ILRA 404
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-03-24
- **Case number:** Civil Misc. Writ Petition No. 31231 of 1993
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/makhan-singh-v-xi-a-d-j-agra-and-others-40097
- **Pages:** 3

## Headnote

Code of Civil Procedure 1808 Ord. 9 R. 13
- Suit for cancellation-27.2.89 fixed for
disposal
of
issue
No.
10-due
to
Advocates strike 27.4.89 fixed-neither
petitioner nor his counsel appearedCourt suo moto decided the suit itself on
merit-no notice for final disposal givenapplication under order 9.R.13 held
mentionable.

Held- Para 5

The order dated 9th May 1989 has been
passed under Rule 2 and not under rule

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
404
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.03.2003

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 31231 of 1993

Makhan Singh

...Petitioner
Versus
XIth Additional District Judge, Agra and
others

 ...Respondents

Counsel for the Petitioner:
Shri A.K. Goyal

Counsel for the Respondents:
Shri Prakash Gupta
Shri D. K. Agarwal
S.C.

Code of Civil Procedure 1808 Ord. 9 R. 13
- Suit for cancellation-27.2.89 fixed for
disposal
of
issue
No.
10-due
to
Advocates strike 27.4.89 fixed-neither
petitioner nor his counsel appearedCourt suo moto decided the suit itself on
merit-no notice for final disposal givenapplication under order 9.R.13 held
mentionable.

Held- Para 5

The order dated 9th May 1989 has been
passed under Rule 2 and not under rule
3. Applying the ration as set out in Seth
Munnalal case (supra), it is clear that an
application under Or.9 r.9 and r.13 was
maintainable especially in view of the
fact that there was no notice to the
plaintiff petitioner that the suit itself
would be finally heard and disposed of.
In my view, the application under Or. 9
was maintainable for recall of the order
dated 9th May 1989.
Case law discussed:
AIR 1970 Alld 257
1996 ACJ 1043

(Delivered by Hon'ble D.P. Singh, J.)

1. Pleadings have been exchanged
and counsel for the parties agree that the
writ petition itself may be disposed of
finally under the Rules of the Court.

2. The petitioner filed suit no. 693 of
1987 for cancellation of sale deed dated
9.4.1984 and further that the petitioner be
declared owner of the disputed plot. The
contesting respondents filed their written
statement. A number of issue were framed
on
21st
March
1988.
However,
subsequently an additional issue was
framed on 10th February 1989 which was
to the following effect:

"Prastut Vad perjo ki Bainame
Samvyavhar
per
Adharit
hai
per
Adhiniyam 45 San 1988 Ka kya Prabhao
hai ?

3. The issue related to as to whether
the provisions of Act No. 45 of 1988
dealing with 'benami' transaction were
attracted. The trial court had also framed
other issues including the issues no. 5 and
9 as to whether any cause of action had
arisen and as to what relief the plaintiff is
entitled to. The trial court fixed 27.2.1989
for disposal of issue no. 10 only.
However, due to Advocates strike the
case could not be taken up, though it is
averred that the plaintiff was present on
that date. The court, thereafter fixed 6th
April 1989 for disposal of issue no. 10,
which date was adjourned on the request
of counsel for the petitioner and 27th
April, 1989 was fixed for disposal of issue
no. 10. On 27th April 1989 neither the
Petitioner nor his counsel appeared before
the court and the court after disposing of
issue no.10 went on to dismiss the suit of
the petitioner by its order dated 9th May
http://www.allahabadhighcourt.nic.in
2 All] Makhan Singh V. XI A.D.J., Agra and others
405
1989. Having come to know of the
aforesaid order, the petitioner moved an
application for recall of the aforesaid ex
parte order on the ground that he had
fallen ill on the date fixed and he also
annexed a copy of the medical certificate
issued by his doctor. After giving
opportunity to the parties, the trail court
rejected the application by its order dated
18th July 1991 holding that the application
under
Or.
9r.9
C.P.C.
was
not
maintainable.
Aggrieved
against
the
aforesaid, an appeal was preferred which
was also rejected by an order dated 31st
May, 1993. The writ petition challenges
the aforesaid three orders dated 9th May
1989, 18th July 1991 and 31st May 1993.

4. The principal contention of the
learned counsel for the petitioner is that
the order dated 9th May 1989 was not an
order passed under Or.17 r.3 C.P.C. but
was referable to rule 2 thereof and thus
the application under on 9 r. 9/13 C.P.C.
was maintainable. The further contention
is that the trial court totally misapplied
itself with regard to the applicability of
the provisions of Act no. 45 of 1988.
However,
learned
counsel
for
the
respondent contends that since the order
was passed on merits under or. 17 r.3
C.P.C. only an appeal lay against such an
order and no application under Or.9 was
maintainable.

5. As has been noted hereinabove,
though 27th April 1989 was the adjourned
date fixed for disposal of issue no. 10, the
plaintiff
petitioner
nor
his
counsel
appeared. It is apparent that the suit was
fixed for disposal of only one issue that is
issue no. 10 and not for disposal of the
entire suit itself. A perusal of the order
dated 9th May 1989 would show that in
fact it is an order disposing of the suit
itself on merits for which the court had
not fixed any date and no notice was
given to the petitioner for final disposal of
the suit. Looking to the tenor of the order
and the attending circumstances, it is
apparent that the order is referable to rule
2 of Or. 17 C.P.C.A. Full Bench of this
court while confronting a some what
similar circumstances in the case of Seth
Munna Lal Vs. Seth Jai Prakash (AIR.
1970 Allahabad 257) has held that no
straight jacket formula can be adopted to
find out as to whether the order was
referable to rule 2 or 3 of Or. 17. It has
been held that the tenor of the order and
the attending circumstances can be
examined by the court to see if the order
was passed under Or. 17 rule 3 or rule 2
C.P.C. As already observed hereinabove,
the order dated 9th May 1989 has been
passed under Rule 2 and not under rule 3.
Applying the ratio as set out in Seth
Munnalal case (supra), it is clear that an
application under Or. 9 r.9 and r.13 was
maintainable especially in view of the fact
that there was no notice to the plaintiff
petitioner that the suit itself would be
finally heard and disposed of. In my view,
the
application
under
Or.
9
was
maintainable for recall of the order dated
9th May 1989.

6. Even the second contention of the
learned counsel for the petitioner has
some force. The transaction impugned
was of a date much prior to the
enforcement of Act no. 45 of 1988. The
suit itself was filed prior to the invoking
of the aforesaid Act. Thus, in view of the
ratio laid down by the Apex Court in the
case of Heirs of Virarajlal Ganatra V.
Parshotam S. Shah (1996 All C.J. 1043)
provisions of Act no. 45 of 1988 were not
attracted and thus the impugned order was
patently erroneous.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
406
7. As I have already held that the
order dated 9th May, 1989 was referable to
Or. 17 r. 2 C.P.C. thus, the application for
recall under Or. 9 was maintainable,
therefore,
the
order
rejecting
the
application for recall dated 18th July 1991
as
not
being
maintainable
is
also
erroneous. On similar reasons, the order
of the appellate court dated 1st of May
1993 also cannot be sustained.

8. In view of the discussions
hereinabove, the writ petition succeeds
and is allowed. The order dated 9th May
1989, 18th July 1991 and 31st May 1993
are hereby quashed. The case is remanded
to the trial court for deciding it afresh in
accordance with law after giving full
opportunity to the learned counsel for the
parties. No orders as to costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.3.2003

BEFORE
THE HON'BLE JANARDAN SAHAI, J.

Civil Misc. Writ Petition No. 10566 of 2003

Smt. Saroj Dwivedi

...Petitioner
Versus
Additional District Judge/Special Judge
(S.C. & S.T. Act) & others ...Respondents

Counsel for the Petitioner:
Sri Sanjay Srivastava

Counsel for the Respondents:
A.G.A.

U.P. Act No. 13 of 1972 - Section 28 -
read with Transfer of Property Act,
Section 108 (m)- Repair work by the
tenant without permission of land lord
suit for injunction interim injunction
granted by the Trail Court rejected by
the Lower Appellate Court held - proper
-when the tenant claim for expenses of
repair work only then the provisions of
28 shall be attracted-not otherwise.

Held- Para 4

As
already
discussed
above,
the
provisions of Section 28 of U.P. Act No.
13 of 1972 apply in a different situation
where the tenant wants the landlord to
bear the expenses of the repairs. It does
not take away the right of the tenant to
effect the repairs himself. The order of
the appellate court, therefore, does not
suffer from any error, which may call for
any interference under Article 226 of the
Constitution.
Case Law discussed:
1994 ACJ 1140
1999 ACJ 597
AIR 1970 SC 1298

(Delivered by Hon'ble Janardan Sahai, J.)

1. The petitioner is a land lord of
premises no. 124/326 B, Govind Nagar,
Kanpur. The third respondent is the tenant
of the building. The petitioner filed a suit
for injuction in the court of the Civil
Judge (J.D.), Kanpur Nagar for restraining
the defendant from constructing a roof in
the room in the tenancy of the respondent.
The application for temporary injunction
was also filed by the petitioner. The trial
court
allowed
the
application
and
restrained the tenant from reconstructing
the roof making it clear, however, that the
injunction would not come in the way of
orders being passed under Section 28 U.P.
Act No. 13 of 1972. The appellate court
has allowed the appeal of the tenant third
respondent
and
has
dismissed
the
application for temporary injunction. The
appellate court has relied upon the
provisions of Section 108m of the
Transfer of property Act for holding that
the lessee is bound to keep the tenanted
property in good condition as it was at the