# Mohd. Saif Ali & Ors v. Addl. Commissioner

- **Citation:** (2021) 11 ILRA 691
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-07
- **Case number:** Misc. Single No. 22136 of 2021
- **Bench:** J.J.Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-saif-ali-ors-v-addl-commissioner-46634
- **Pages:** 4

## Headnote

A. Practice & Procedure - Civil Procedure Code,
1908: Order IX Rule 8, 9(1) - The order of
dismissal in default can be set aside by the Court if
the plaintiff satisfies the Court by showing sufficient
cause for non-appearance. The rule makes it
pellucid that sufficiency of cause on the date of
default is important and not the past conduct
of the parties. (Para 15)

It is a statutory principle of law that in judging the
sufficiency of cause in matters of default, the Court
should lean in favour of hearing rather than shutting
out the doors of hearing. (Para 18)

Writ Petition Allowed. (E-10)

List of Cases cited:

## Text

11 All. Mohd. Saif Ali & Ors. Vs. Addl. Commissioner (Judicial) Ayodhya Division, Faizabad & Ors.
691
basis of compromise between the petitioners and
respondent No.4. The settlement deed dated
08.10.2021 shall remain integral part of this
order.

15. The counsel for the petitioners is
directed to upload the settlement deed dated
08.10.2021.

16. Office is directed to issue the certified
copy of this order alongwith the copy of
settlement deed dated 08.10.2021.

17. Mr. Nadeem Murtaza, learned counsel
for the petitioners and Mr. Amarjeet Singh
Rakhra, learned counsel for the respondent No.4
deserve appreciation of this Court for putting
their efforts to get the dispute settled between
the
parties
amicably.
Their
efforts
are
commendable.
----------
(2021)12ILR A691
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 07.12.2021

BEFORE

THE HON'BLE J.J.MUNIR, J.

Misc. Single No. 22136 of 2021

Mohd. Saif Ali & Ors. ...Petitioners
Versus
Addl.
Commissioner
(Judicial)
Ayodhya
Division, Faizabad & Ors. ...Respondents

Counsel for the Petitioners:
Santosh Kumar Mehrotra, Ishwar Dutt Shukla

Counsel for the Respondents:
C.S.C., Ajeet Srivastava, Mohan Singh

A. Practice & Procedure - Civil Procedure Code,
1908: Order IX Rule 8, 9(1) - The order of
dismissal in default can be set aside by the Court if
the plaintiff satisfies the Court by showing sufficient
cause for non-appearance. The rule makes it
pellucid that sufficiency of cause on the date of
default is important and not the past conduct
of the parties. (Para 15)

It is a statutory principle of law that in judging the
sufficiency of cause in matters of default, the Court
should lean in favour of hearing rather than shutting
out the doors of hearing. (Para 18)

Writ Petition Allowed. (E-10)

List of Cases cited:

1. Ram Raj & ors. Vs Deputy Director of Consolidation
& ors. 1988 RD 139

2. Phool Chand Vs Vth A.D.J. & ors. 1983 ARC 637

3. Sangram Singh Vs Election Tribunal, Kotah & ors.
AIR 1955 SC 425 (followed)

4. Ramji Das & anr Vs Mohan Singh 1978 RC 496 (SC)
(followed)

5. The Collector, Land Acquisition, Anantnag & anr.
Vs. Mst. Katiji & ors. (1987) 2 SCC 107 (followed)
(Delivered by Hon'ble J.J. Munir, J.)

1. Perused the Office report dated
06.12.2021, regarding service of notice upon
respondent nos. 3, 6, 7 and 8 by registered post.
The report reads to the following effect:-

"Notice were issued on 05.10.2021
and booked by the post office on 23.10.2021,
25.10.2021 through regd. post at correct address.
Since then, neither any undelivered cover/AD
received back nor any power has been filed on
behalf of O.P. Nos. 3, 6, 7, 8.

Sd/- illegible
 06.12.2021.
 RO
 M.S.-I"

2. A perusal of the aforesaid report, shows
that service upon the said respondents, must be
deemed sufficient. Accordingly, service upon
respondent nos. 3, 6, 7 and 8, is held good.
692 INDIAN LAW REPORTS ALLAHABAD SERIES

3. Heard Mr. Mehandi Abbas Naqvi
holding brief of Mr. I.D. Shukla, learned counsel
for the petitioner, Mr. Mohan Singh appearing
on behalf of the Gaon Sabha and Mr. Vinod
Kumar Singh, learned Additional Chief Standing
Counsel appearing on behalf of the Staterespondents.

4. Mr. Ajit Srivastava appearing on behalf
of the respondent nos. 1, 2 and 10 and Mr. Vivek
Kumar Mishra appearing on behalf of the
respondent nos. 11, 12 and 13, are not present
when the case is called on.

5. None of the respondents have filed any
counter affidavit.

6. Admit.

7. Heard forthwith.

8. The Additional Sub-Divisional Officer,
Sadar, Sultanpur had before him Suit No.
D201604680006159 under Section 229B of the
U.P.
Zamindari
Abolition
and
Land
ReformsAct, 1950, instituted by the petitioners
and their predecessors. The suit appears to have
been dismissed in default and restored to file on
more than one occasion. The last successful
restoration was on 12.07.2007. Thereafter, the
suit was again dismissed in default on
29.01.2015. The application that was brought to
set aside the order dated 29.01.2015 was to undo
an episode of default.

9. The Additional Sub-Divisional Officer,
Sadar, Sultanpur looked into the past conduct of
the plaintiff-petitioners and came to the
conclusion that they were not serious about
prosecuting the suit. Accordingly, the Additional
Sub-Divisional
Officer,
dismissed
their
restoration
application
vide
order
dated
11.08.2018. The plaintiff-petitioners assailed the
order of the Additional Sub-Divisional Officer,
Sadar,
Sultanpur
in
revision
before
the
Commissioner, Ayodhya Division, Ayodhya.

10 . The revision, being Case No. 02478 of
2018, came up for determination before the
Additional Commissioner (Judicial), Ayodhya
Division,
Ayodhya
on
22.07.2021.
Unfortunately, for the plaintiff-petitioners, the
Additional Commissioner (Judicial) also looked
at the issue in the same perspective, as the Trial
Court. He reached the same conclusion as the
Trial Court and dismissed the petitioner's
revision. This is what has led the petitioner to
institute the present petition under Article 227 of
the Constitution of India.

11. Learned counsel for the petitioner
submits that the approach of both the courts
below is not only flawed and manifestly illegal,
but also works serious injustice and prejudice to
the plaintiff-petitioners. He submits that the
approach of the two courts below is manifestly
illegal, because it is not permissible for a Court,
seized of a restoration application, to look at the
past conduct of parties. All that has to be seen is
the emergent sufficiency of cause on the date of
default.

12. Mr. Mohan Singh, on the other hand,
submits that past conduction of the respondent is
also relevant, particularly, before this Court,
where
he
is
invoking
our
extraordinary
jurisdiction
under
Article
227
of
the
Constitution.

13. This Court has considered the rival
submission and perused the record. It is no
doubt true that in the past, the plaintiff has
defaulted on a total of four occasions and
applied for restoration of this suit, where he
was successful in three instances. The last
default has put him in trouble, with the Courts
below holding that the plaintiff is not interested
in pursuing this cause.
11 All. Mohd. Saif Ali & Ors. Vs. Addl. Commissioner (Judicial) Ayodhya Division, Faizabad & Ors.
693

14. A perusal of the records shows that the
suit was dismissed in default on 29.01.2015, in
absence of the plaintiff, but in the defendant's
presence. The dismissal of the suit in default is,
therefore, one governed by Order IX Rule 8
CPC. The right to restoration of the suit would
be governed by Rule 9 of Order IX CPC. Rule 9
of Order IX reads:

"(1) Where a suit is wholly or partly
dismissed under rule 8, the plaintiff shall be
precluded from bringing a fresh suit in respect
of the same cause of action. But he may apply
for an order to set the dismissal aside, and if he
satisfies the Court that there was sufficient
cause for his non-appearance when the suit was
called on for hearing, the Court shall make an
order setting aside the dismissal upon such
terms as to costs or otherwise as it thinks fit, and
shall appoint a day for proceeding with the suit.

(2) No order shall be made under this
rule unless notice of the application has been
served on the opposite party."

 (Emphasis by Court)

15. Now, a perusal of sub-rule (1) of Rule
9 of Order IX shows that a dismissal in default
under Rule 8 of Order IX may be set-aside by
the Court if the plaintiff, on an application to
set-aside that order, satisfies the Court that
"there was sufficient cause for his nonappearance when the suit was called on for
hearing", to borrow the phraseology of the
Statute. What is, therefore, relevant is the
sufficiency of cause for non-appearance on the
date when the suit is dismissed in default. The
rule makes it pellucid that what is relevant is the
sufficiency of cause on the date of default and
not the past conduct of parties, or for that matter,
the plaintiff's.

16. In this regard, reference may be made
to the decision of this Court in Ram Raj and
Others vs. Deputy Director of Consolidation
and Others, 1988 RD 139, wherein it has been
held:

"................... These facts were not
controverted by the opposite party No.
3.
The Deputy Director of Consolidation appears
to have rejected them to be habitual defaulters.
There appears to be no justification for such
observation. However, be as it may, I am of the
opinion that if there is valid excuse for the
petitioners' absence on the date when the
restoration application was dismissed for
default, the previous negligence or want of
diligence on their part to prosecute their case
could not be made a ground dis-entitling the
petitioners for restoration of the case."

17. Again in Phool Chand vs. Vth
Additional District Judge and Others, Aligarh;
1983 ARC 637, it has been held:

"................The Prescribed Authority
when recording the finding that petitioner
deliberately absented has drawn heavily on the
cirucmstances that even earlier the suit had been
decided ex parte. This was wholly immaterial to
decide if petitioner was prevented from sufficient
cause in not appearing on the date fixed. Nor
was he justified in drawing adverse inference
against petitioner for absence on assumption
that
he
was
deliberately
delaying
the
proceedings because despite notice in 1972 he
did not comply with it and six years were wasted
in guardianship proceedings. The revising
authority fell in same error. "

18. There is yet another aspect of the
matter. It is a salutary principle of law that in
judging the sufficiency of cause in matters of
default, the Court should lean in favour of
hearing rather than what has been described as
shutting out the doors of hearing. In this
connection, reference may be made to the
decisions of the Supreme Court in Sangram
694 INDIAN LAW REPORTS ALLAHABAD SERIES
Singh vs. Election Tribunal, Kotah and Others,
AIR 1955 SC 425, Ramji Das and Another vs.
Mohan Singh, 1978 ARC 496 (SC) and the
Collector, Land Acquisition, Anantnag and
Another vs. Mst. Katiji and Others, (1987) 2
SCC 107.

19. In this case also, what was before the
Court is a declaratory suit, where title to
property is at stake. There is ex-facie no reason
why the plaintiff, who has moved the Court,
asking for declaration of his right, would not be
interested in the trial of his cause and judgment
on merits. The fact that an accident has
happened more than once, does not make it any
less an accident. At the same time, the plaintiff
ought to be careful in future and should
compensate the defendants in costs, subject to
which alone, he would be entitled to restoration.

20. In the circumstances, this petition
succeeds and is allowed. The impugned orders
dated 22.07.2021, passed by the Additional
Commissioner
(Judicial),
Ayodhya
Division,
Ayodhya and the order dated 11.10.2018, passed by
the Additional Sub-Divisional Officer, Sadar,
Sultanpur, are hereby set-aside and reversed. The
petitioner's restoration application dated 27.02.2015
stands allowed, subject to payment of Rs. 5,000/- in
costs to the defendants. These costs shall be
deposited within a month of date with the Trial
Court, which shall be paid to the defendants. The
suit shall stand restored to file of the Additional
Sub-Divisional Officer, Sadar, Sultanpur, who shall
proceed in accordance with law.
----------
(2021)12ILR A694
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.12.2021

BEFORE

THE HON'BLE JASPREET SINGH, J.

Misc. Single No. 22635 of 2021
alongwith
Misc. Single No. 19490 of 2021

C/m Jai Maa Gange Manav Kalyan Sanstha &
Ors. ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sharad Pathak, Piyush Pathak

Counsel for the Respondents:
C.S.C., Kuldeep Pati Tripathi, Savitra Vardhan Singh,
Shivanshu Goswami

A. Interpretation of Statute - "Recognition"
and "affiliation" - National Council for
Teacher Education Act, 1993: Section 14 -
U.P.
St.Universities
Act,
1973:
Section
37(11) - The first step for an Institution is to
procure recognition and after that it is required to
obtain affiliation. The affiliating body has a limited
field upon which it can act and after being
satisfied it can grant or refuse the affiliation. The
affiliating body does not have the powers to reenter into the considerations regarding primary
infrastructural facilities which have already been
examined by the N.C.T.E., while granting the
recognition. If the examining body or the
St.Authorities find deficiency in the infrastructure
then it can always recommend the cancellation of
the recognition to the Regional Committee of the
N.C.T.E. (Para 50)

The Court find that the grounds based on which
affiliation for the year 2021-22 has been refused to
the petitioner does not based on sound reasoning and
being arbitrary is hit by the Article 14 of the
Constitution of India. (Para 79)

Writ Petition Allowed. (E-10)

List of Cases cited:

1. Maa Vaishno Devi Mahila Mahavidyalaya Vs St.of
U.P. & ors. (2013) 2 SCC 617

2. Managing Board of the Milli Talimi Mission, Bihar,
Ranchi & ors. Vs St.of Bihar & ors. (1984) 4 SCC 500

3. Mata Gujri Memorial Medical College Vs St.of Bihar
& ors. (2009) 16 SCC 309