# Smt. Sharda Singh v. Yashpal & Ors

- **Citation:** (2023) 12 ILRA 188
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-23
- **Case number:** Matters Under Article 227 No. 11864 of 2023
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-sharda-singh-v-yashpal-ors-49473
- **Pages:** 4

## Headnote

A. Civil Law - Constitution of India,1950Article 226-application for expeditious
disposal of suit proceedings by taking into
consideration the age of the petitioner
who is a Senior Citizen of 79 years of ageInstant petition disposed off by requiring
the Court to pass suitable orders thereonCourt below directed to dispose the
application for expeditious disposal of the
suit.(Para 1 to 11)

The petition is disposed of. (E-6)

List of Cases cited:

## Text

188 INDIAN LAW REPORTS ALLAHABAD SERIES

189. This Court finds that Case
Nos.3341 of 2017 and 234 of 2021 filed by
defendant Nos.1 and 2 are for the same
relief, which this Court finds cannot be
granted to them at this stage and both the
matters fails and are hereby dismissed and
interim orders stands vacated.

190. Further, identical controversy
has been raised through Case No.3562 of
2021 and 3844 of 2021. As the scientific
survey is already being conducted by ASI
in Original Suit No.18 of 2022, it is hereby
directed that ASI shall submit the same
report in Suit No.610 of 1991 and in case it
is found that further survey is required,
which have been left out in the survey
conducted by ASI, the Court below shall
issue necessary directions to carry out
further survey in view of order dated
08.4.2021.

191. In view of the above, the order
dated 08.04.2021 passed by Court below
for conducting scientific survey is modified
to the extent indicated above. Both the
cases filed under Article 227 No.3562 of
2021 and 3844 of 2021 fail and are hereby
dismissed. Thus, all the five matters under
Article 227 No. 3562 of 2021, 3341 of
2017, 1521 of 2020, 234 of 2021 and 3844
of 2021 warrant no interference by this
Court and stand dismissed. Interim order, if
any, stands vacated.
----------
(2023) 12 ILRA 188
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.11.2023

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Matters Under Article 227 No. 11864 of 2023

Smt. Sharda Singh ...Petitioner
Versus
Yashpal & Ors. ...Respondents

Counsel for the Petitioner:
Sri Ram Chandra Uttam

Counsel for the Respondents:

A. Civil Law - Constitution of India,1950Article 226-application for expeditious
disposal of suit proceedings by taking into
consideration the age of the petitioner
who is a Senior Citizen of 79 years of ageInstant petition disposed off by requiring
the Court to pass suitable orders thereonCourt below directed to dispose the
application for expeditious disposal of the
suit.(Para 1 to 11)

The petition is disposed of. (E-6)

List of Cases cited:
1. Ali Shad Usmani & ors. Vs Ali Isteba (2015) 2
ADJ 250 DB

2. Km. Shobha Bose Vs Judge, Small Causes &
ors. (2011) 88 ALR 850

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. Heard Shri Ram Chandra Uttam,
learned counsel for the petitioner.

2. Considering the nature of the order
that is proposed to be passed the notice
upon the respondent Nos. 1 to 3 is being
dispensed with.

3. The instant petition under Article
227 of the Constitution of India has been
instituted to direct the learned Civil Judge
(Junior Division) 6th Mathura to proceed
with and decide the Original Suit No. 578
of 2022 (Sharda Singh Vs. Yashpal Singh
12 All. Smt. Sharda Singh Vs. Yashpal & Ors.
189
and others) pending before it expeditiously
within a time frame fixed by the Court.

4. It is the case of the petitioner that
she is a widow lady of 79 years of age. Her
late husband Colonel Suryapal Singh
(retired) has bequeath a House bearing No.
1/170-A, area 500 square ft. situate at Brij
Ganga Residency-9, Civil Lines, Mathura
under a registered Will dated 24.06.2016.
The respondents herein who are the sons
and daughters of the petitioner have also
been Willed a flat each under the registered
Will aforesaid. All the contesting parties
are in possession of there respective
properties. The eldest son of the petitioner
namely Chetan Kumar Singh is residing
with her. The respondent no. 1 was
permitted to reside in the house of the
petitioner but now he has shown no
intention to vacate the same. The other
respondents are all intending to grab the
house of the petitioner which has come
under her share under the registered Will
dated 24.06.2016 of her late husband.

5.

The
petitioner
under
such
circumstances has instituted the Suit No.
578 of 2022 (Sharda Singh vs. Yashpal
Singh and others) seeking the relief of
permanent
injunction
restraining
the
respondents
from
interfering
in
her
peaceful possession and for eviction of the
respondent no. 1 from Suit property. The
respondents have put in appearance and
filed
their
Written
Statement.
The
petitioner has filed her Replica.

6. Learned counsel for the petitioner
submits that the petitioner is a Senior
Citizen of 79 years of age and is suffering
from various old age related diseases and is
on a Wheel Chair. The petitioner has
moved the learned Civil Judge (Junior
Division) 6th, Mathura, seized with the Suit
Proceedings to expedite the same which
application
is
pending
consideration.
Learned counsel has invited the attention of
this Court to the order sheet of the Suit
Proceedings to demonstrate that the Trial
Court is proceedings in a very slow pace
and considering the plight of the petitioner
and her old age the Suit Proceedings are
liable to be expedited.

7. This Court has considered the
submissions of the learned Counsel for the
petitioner and has perused the records.
From the perusal of the order sheet filed on
record as Annexure -5 of the writ petition it
is borne out that the suit is pending at the
stage of framing of issues. The last date
07.11.2023 was fixed for consideration of
the application of the petitioner (16-C) for
expeditious disposal of the Suit.

8. The Division Bench of this Court
in case of Ali Shad Usmani vs. Ali Isteba,
2015 (2) ADJ 250 (DB) has held that no
direction can be issued to the sub-ordinate
courts
for
deciding
the
suit
within
stipulated period. Relevant portion of the
judgment is extracted hereunder:-

"We are not inclined to issue a
direction for the expeditious hearing of a
Civil Suit which is pending before the Civil
Judge
(Junior
Division),
DistrictAzamgarh. It would be most inappropriate
to Court to entertain a writ petition under
Article 226 and/or under Article 227 of the
Constitution simply for the purpose of
expediting the hearing of a suit. Such
orders, if granted, place a class of litigants,
who move the court in a separate and
preferential category whereas other cases
which may be of similar or greater
antiquity and urgency are left to be decided
in the normal channel. Hence, any such
direction may be issued with the greatest
190 INDIAN LAW REPORTS ALLAHABAD SERIES
care and circumspection by the High Court
otherwise
the
Civil
Courts
will
be
overburdened only with requests for
expeditious disposal of suits, which have
been expedited by the High Court. Most of
the litigants cannot afford the expense of
moving the High court and would not,
therefore, be in a position to have the
benefit of such an order.

Ultimately, it must be left to the
judicious exercise of discretion of the
concerned Court to determine whether a
ground for urgency has been made out. We
emphasize that there may be other cases
such as involving senior citizens, those who
are differently abled or people suffering
from a particular disability socio-economic
or otherwise which may prime cause of
urgent disposal. It is for the learned Trial
Judge in each case to apply his or her mind
and decide whether the hearing of the suit
to be expedited.

For these reasons, we are not
inclined to entertain the petition. The
petition is, accordingly, dismissed. There
shall be no order as to cost."

9. An earlier Division Bench of this
Court in the Case of Km. Shobha Bose V.
Judge Small Causes & Ors. reported in
2011 (88) ALR 850, has held that the
power to direct expeditious disposal of Suit
or any other Cases should be exercised
sparingly in extra ordinary circumstances
and not in a routine manner. Relevant
portion of the judgment is extracted
hereunder:-

"3. The prayer made in this
petition for expeditious disposal of the
suit/revision, in sum and substance, is
nothing but a prayer for out of turn hearing
of the suit. We are unaware of the docket of
the Judge, Small Causes Court in seisin of
the matter. We also do not know that suits
of earlier years in which old ladies figure,
are pending or not. However, it is common
knowledge
that
thousands
of
cases
instituted earlier by persons more aged than
the petitioner are unfortunately pending in
the Court. It is systemic delay. It is further
common knowledge that direction of the
nature, if granted, affects the working of
the Court and the Judges, in seisin of such
cases, remain ordinarily occupied with only
those cases in which directions have been
given for expeditious disposal and cases
filed earlier gets ignored as those litigating
from earlier years have no resources to
approach this Court seeking expeditious
disposal of the matter. It is further common
knowledge that many of the Judges,
because of sheer number of such directions,
are unable to carry out these directions and
subjected to contempt proceedings and
even personally directed to appear in such
proceedings. Such a prayer made in routine
manner can not be granted without serious
application of mind. It is high time that we
must give serious thought to all these
considerations before passing any order for
expeditious disposal. We are not oblivion
of the fact that this Court does possess
power to direct early disposal of the case
but as often said more the power greater
the responsibility. We are of the opinion
that power to direct expeditious disposal
of suit or for that matter any lis which, in
sum and substance, means out of turn
disposal is to be exercised sparingly in
extraordinary circumstances and not in a
routine manner. It is fit to be exercised
only when the Court comes to the
conclusion that delay would cause gross
injustice. However, while deciding this
issue, the Court would bear in mind that
it does not cause injustice to other
litigants, who are waiting for justice from
before because the very nature of order
delays cases filed earlier. It causes
12 All. Bhagwan Shrikrishna Virajman, at Katra Keshav Dev Khewat No. 255 & Ors. Vs. U.P.
 Sunni Central Waqf Board, Lucknow & Ors.
191
resentment and dissatisfaction to those
who are waiting for justice from before.
It should be exercised only when it comes
to the notice of this Court that Judge in
seisin of the case is purposely avoiding to
dispose of the suit for any oblique
motive, which may defeat the justice. An
order for expeditious disposal in a routine
manner can not be countenanced.

4. We hasten to add that even in
such kind of cases, ordinarily this Court
would relegate the petitioner to the remedy
before the Court in seisin of the lis to take
appropriate decision, as it is that Court
which can consider the matter in totality of
the circumstances."

10. In view of the above, this Court is
not inclined to grant the relief prayed for by
the petitioner at this stage. However, the
Court finds that the petitioner has already
moved the Court below by moving an
application
(Paper
No.
16-C)
for
expeditious disposal of the suit proceedings
taking into consideration that the petitioner
is a Senior Citizen of 79 years of age. In the
opinion of the Court the petitioner can be
disposed off by requiring the Court to pass
suitable orders thereon.

11. Accordingly, the petition is
disposed off by requiring the Civil Judge
(Junior Division), 6th Mathura, seized with
the Application for expeditious disposal
(16-C) to consider and pass appropriate
orders thereon on the next date fixed in the
suit or within a reasonable time.
----------
(2023) 12 ILRA 191
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2023

BEFORE

THE HON'BLE MAYANK KUMAR JAIN, J.
Original Suit No. 1 of 2023

Bhagwan Shrikrishna Virajman, at Katra
Keshav Dev Khewat No. 255 & Ors.
 ...Plaintiffs
Versus
U.P. Sunni Central Waqf Board, Lucknow &
Ors. ...Defendants

Counsel for the Plaintiffs:
Sri Devki Nandan Sharma, Sri Prabhash
Pandey, Sri Pradeep Kumar Sharma, Sri
Vishnu Shanker Jain, Sri Shaurya Krishan,
Ms. Reena N. Singh, Sri Hari Shanker Jain
(Sr. Advocate)

Counsel for the Defendants:
Sri Nasiruzzaman, Sri Gulrez Khan, Sri
Mahmood Pracha, Sri Hare Ram, Sri
Kamlesh Narayan Pandey, Sri Birendra
Prasad Maurya, Sri Punit Kumar Gupta

Civil Law---The Code of Civil Procedure,
1908-Order VII Rule 11 & Order XXVI Rule
9 & 10--- Whether an application for rejection
of plaint should be decided prior to the
application for appointment of commission---
Held--- Application under Order VII Rule 11 of
the Code can only be decided once the plaintiffs
filed their objections against it. Merely because
an application for rejection of plaint is filed on
the date of hearing and prayer is made that it is
decided first in order does not necessarily mean
that such request be accepted in the facts of
this case There is no, express or implied, bar in
the Code prohibiting the court from deciding an
application, otherwise ripe for hearing, only
because an application for rejection of plaint is
pending--- In the proceedings for appointment
of commission by the Court, the defendants can
participate. Moreover, if they feel aggrieved by
the report of the commission, they have an
opportunity to file their objections. The report
filed by the commissioner is always subject to
evidence of the parties and is admissible in
evidence. The commissioners are competent
witness and they may be called for evidence
during the trial, if desired by any party to the
suit. The other party will always have an
opportunity to cross examine them---Prayer for
appointment of commission by the plaintiffs