# U.P. Sunni Central Waqf Board, Lucknow v. Bhagwan Sri Krishna Virajman & Ors

- **Citation:** (2023) 5 ILRA 296
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-01
- **Case number:** Matters Under Article 227 No. 5967 of 2022
- **Bench:** Prakash Padia
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/u-p-sunni-central-waqf-board-lucknow-v-bhagwan-sri-krishna-virajman-ors-50200
- **Pages:** 8

## Headnote

Sri Prabhash Pandey, Sri Birendra Prasad
Maurya,Sri Kamlesh Narayan Pandey, Ms.
Pooja Agarwal, Sri Prabhash Pandey, Ms.
Priyanka Swami, Ms. Ritu Bhardwaj, Sri
Pradeep Sharma, Mrs. Garima Prasadh, Sr.
Advocate/Add. A.G.

A. Civil Law - Jurisdiction u/Art. 226, 227
- A plaint duly instituted u/s 26 of the CPC
has to be registered and in light of
provisions contained in Section 27 of CPC,
if the suit is duly instituted, summons
have to be issued to the Defendants. The
Trial Court treated the Plaint as a Misc. Case
and decided a question of maintainability of the
suit which is not permissible in law. The Civil
Judge (S.D.), has not even exercised its powers
u/Order 7 Rule 11 of the CPC and has rejected
the plaint duly presented by treating it as a
Miscellaneous Case. There is no provision in
CPC to register any regular suit as a
Miscellaneous Case. The Plaintiffs had not
filed any application which could be
treated as a Misc. Case. The Plaintiffs had
filed Suit. The Trial Court therefore clearly
committed manifest error of law in registering
the suit as a Miscellaneous case and hearing it
on the question of maintainability. (Para 12, 17)

B. It is well settled that if an appeal has
been filed against an order or decree
against which no appeal is maintainable,
the Court can treat the appeal as revision.
The Plaintiffs had filed an Appeal against the
order dated 30.09.2020 treating the order to be
passed u/Order 7 Rule 11 CPC. The District
Judge held by order dated 18.01.2021 that the
order dated 30.09.2020 could not be treated as
an order u/Order 7 Rule 11 CPC and therefore
held that Appeal was not maintainable, Revision
5 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Bhagwan Sri Krishna Virajman & Ors.
297
was maintainable. Order dated 18.01.2021 has
been challenged and instead the parties
participated in revision proceedings before the
District Judge over several hearings and raised
all their contentions. (Para 18)

C. No objection was raised as to the lack
of
pecuniary
jurisdiction
before
the
District judge in revision proceedings and
this issue cannot be permitted to be raised
by the Petitioners for the first time before
this Court in jurisdiction u/Article 227. It is
noteworthy to mention that at Para 83 of the
plaint, the valuation of the suit is stated as Rs.
20,00,000/- and as per the provisions of Section
115 of CPC r/w Chapter II of Civil Laws Uttar
Pradesh (Amendment) Act 2019 the Revision
u/s 115 of CPC upto Rs. 25,00,000/- would lie
before the District Judge. (Para 18)

D. The Defendant comes into picture the
moment summons are issued to him. At
the time of dismissing the suit, the Civil
Judge (Senior Division) had not issued
summons to the Defendants (Petitioners
herein) and therefore, the question of
registration of the suit was between the
court and the plaintiffs.

The District Judge framed many points on the
basis of the arguments raised on behalf of the
Defendants, as recorded in the impugned
judgment. These questions were no

## Text

296 INDIAN LAW REPORTS ALLAHABAD SERIES
taking into consideration the additional
evidence sought to be adduced."

13. Counsel for the petitioners has not
been able to dispute the aforementioned
legal position.

14. This Court may also take notice of
the fact that the power of superintendence
conferred under Article 227, is to be
exercised most sparingly and within the
parameters which have been summarized in
the case of Shalini Shyam Shetty and
another Vs. Rajendra Shankar Patil10,
and also in the case of Radhey Shyam and
another Vs. Chhabi Nath and others11.

15. Learned counsel for the petitioners
have not been able to point out as to how
the conditions precedent mentioned under
Order 41 Rule 27 (1) were satisfied in their
case so as to enable the additional evidence
to be admitted by the appellate court, nor
has been able to point out any material
error or irregularity in the order passed by
the
court
below
so
as
to
warrant
interference in exercise of power under
Article 227 of the Constitution of India.

16. The petition lacks merit and it is,
accordingly, dismissed.
----------
(2023) 5 ILRA 296
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.05.2023

BEFORE

THE HON'BLE PRAKASH PADIA, J.

Matters Under Article 227 No. 5967 of 2022

Matters Under Article 227 No. 5348 of 2022

U.P. Sunni Central Waqf Board, Lucknow
 ...Petitioner
Versus
Bhagwan Sri Krishna Virajman & Ors.
 ...Respondents

Counsel for the Petitioner:
Sri
Punit
Kumar
Gupta,
Ms.
Poorva
Agarwal, Sri Nasiruzzaman, Sri W.H. Khan
(Sr. Advocate), Sri S.F.A. Naqvi (Sr.
Advocate)

Counsel for the Respondents:
Sri Prabhash Pandey, Sri Birendra Prasad
Maurya,Sri Kamlesh Narayan Pandey, Ms.
Pooja Agarwal, Sri Prabhash Pandey, Ms.
Priyanka Swami, Ms. Ritu Bhardwaj, Sri
Pradeep Sharma, Mrs. Garima Prasadh, Sr.
Advocate/Add. A.G.

A. Civil Law - Jurisdiction u/Art. 226, 227
- A plaint duly instituted u/s 26 of the CPC
has to be registered and in light of
provisions contained in Section 27 of CPC,
if the suit is duly instituted, summons
have to be issued to the Defendants. The
Trial Court treated the Plaint as a Misc. Case
and decided a question of maintainability of the
suit which is not permissible in law. The Civil
Judge (S.D.), has not even exercised its powers
u/Order 7 Rule 11 of the CPC and has rejected
the plaint duly presented by treating it as a
Miscellaneous Case. There is no provision in
CPC to register any regular suit as a
Miscellaneous Case. The Plaintiffs had not
filed any application which could be
treated as a Misc. Case. The Plaintiffs had
filed Suit. The Trial Court therefore clearly
committed manifest error of law in registering
the suit as a Miscellaneous case and hearing it
on the question of maintainability. (Para 12, 17)

B. It is well settled that if an appeal has
been filed against an order or decree
against which no appeal is maintainable,
the Court can treat the appeal as revision.
The Plaintiffs had filed an Appeal against the
order dated 30.09.2020 treating the order to be
passed u/Order 7 Rule 11 CPC. The District
Judge held by order dated 18.01.2021 that the
order dated 30.09.2020 could not be treated as
an order u/Order 7 Rule 11 CPC and therefore
held that Appeal was not maintainable, Revision
5 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Bhagwan Sri Krishna Virajman & Ors.
297
was maintainable. Order dated 18.01.2021 has
been challenged and instead the parties
participated in revision proceedings before the
District Judge over several hearings and raised
all their contentions. (Para 18)

C. No objection was raised as to the lack
of
pecuniary
jurisdiction
before
the
District judge in revision proceedings and
this issue cannot be permitted to be raised
by the Petitioners for the first time before
this Court in jurisdiction u/Article 227. It is
noteworthy to mention that at Para 83 of the
plaint, the valuation of the suit is stated as Rs.
20,00,000/- and as per the provisions of Section
115 of CPC r/w Chapter II of Civil Laws Uttar
Pradesh (Amendment) Act 2019 the Revision
u/s 115 of CPC upto Rs. 25,00,000/- would lie
before the District Judge. (Para 18)

D. The Defendant comes into picture the
moment summons are issued to him. At
the time of dismissing the suit, the Civil
Judge (Senior Division) had not issued
summons to the Defendants (Petitioners
herein) and therefore, the question of
registration of the suit was between the
court and the plaintiffs.

The District Judge framed many points on the
basis of the arguments raised on behalf of the
Defendants, as recorded in the impugned
judgment. These questions were not needed to
be decided as the Defendant had right to file its
Written Statement, deny the facts and law
therein, and the Court u/Order 14 Rule 1 CPC
was then to frame issues and after issues were
framed, parties are entitled to lead evidence. In
absence of framing of issues and permitting
parties to lead evidence, matter could not have
been decided. It was however, open to decide
the question of preliminary issues, but as to
what will be the preliminary issues will also have
to be decided under Order XIV Rule 2(ii) CPC
being jurisdiction of the court and bar created
by any law. Entire procedure laid down in
law has been by-passed and findings on
the merits of the case have been given
which is not permissible in law. (Para 19,
20)

E. Scope of interference - The questions
regarding the maintainability of a regular
civil suit and its merits, which could not
have been decided by the Trial Court
without following the due procedure as
per the Code, and further the contentious
questions were not required to be decided
by the District Judge in a Revision
Petition. In any case, these questions
cannot be now decided by this Court in a
petition under Article 227. Any observations
by this Court will prejudice the rights and
contentions of both the parties. The suit has
now been registered as suit No. 353 of 2022.
Summons have already been issued by the trial
court on 26.05.2022 for filing the respective
Written Statements and framing of issues. (Para
21)

When the suit itself was not registered, how
could the valuation of the Miscellaneous case be
a subject matter of objection in a revision
petition. Various findings by the District Judge
given on the merits of case, were made in view
of the arguments raised before the Revision
Court by the Petitioners herein. These questions
also cannot be decided by this Hon'ble Court in
jurisdiction u/Article 227. (Para 14, 15)

Both the petitions are disposed of by remanding
the matter back to the Trial Court with
directions to adjudicate the Civil Suit No. 353 of
2022 after following due procedure as per law
without being influenced by any observation or
findings of the District Judge vide impugned
order dated 19.05.2022. All the parties are free
to raise all their contentions before the trial
Court. (Para 22)

Both
petitions
are
disposed
of
by
remanding the matter back to the Trial
Court. (E-4)

Present petition challenges the judgment
and order dated 19.05.2022, passed by
District Judge Mathura, by which the
judgement and order dated 30.09.2020
passed
by
the
Civil
Judge
(Senior
Division), Mathura has been set aside.

(Delivered by Hon'ble Prakash Padia, J.)

1. Heard Shri W.H. Khan, learned
Senior Counsel along-with Shri S.F.A.,
298 INDIAN LAW REPORTS ALLAHABAD SERIES
Naqvi, learned Senior Counsel assisted by
Shri Punit Kumar Gupta, Ms. Poorva
Agarwal and Shri Nasiruzzaman, learned
counsel for the petitioner in both the
petitions and Mrs. Garima Prasadh, learned
Senior
Counsel/Additional
Advocate
General of State of U.P. along-with Ms.
Priyanka Swami, Ms. Ritu Bhardawaj, Ms.
Pooja Agarwal, Mr. Prabhash Pandey and
Mr. Pradeep Sharma, learned counsel on
behalf of contesting respondents namely
respondent nos. 1 to 8, Shri Kamlesh
Narayan Pandey, learned counsel appearing
on behalf of respondent no.10 namely Sri
Krishna Janam Bhumi Trust, Mathura,
Through the Managing Director and Shri
Birendra Prasad Maurya, learned counsel
appearing on behalf of respondent no.11
namely Sri Krishna Janam Asthan Sewa
Sansthan, Through its Secretary.

2. The above petitions have been filed
under Article 227 of the Constitution of
India challenging the judgment and order
dated 19.05.2022 passed by District Judge
Mathura in Civil Revision No. 02/2021
(Bhagwan Sri Krishna Virajman us. UP
Sunni Central Waqf Board and others) by
which the judgement and order dated
30.09.2020 passed by the Civil Judge
(Senior Division), Mathura in Misc. Case
No. 176 of 2020 has been set aside.
Common questions are raised and thus,
both the matters are taken up together and
are being disposed of by a common order
with the consent of the parties.

3. The brief facts of the case are that a
regular Civil Suit was filed on 25.09.2020
by
the
Respondent
nos.
1
to
9
herein/Plaintiffs before the Court of Civil
Judge (Senior Division), Mathura claiming
right over the property in dispute situated at
Katra Keshav Dev measuring 13.37 acres
which according to the Plaintiffs is
birthplace of Lord Krishna and for removal
of the structure standing thereat and prayed
for issuing decree in the nature of
declaration, mandatory and prohibitory
injunction and also for cancelling the
alleged fraudulent compromise decree
dated 20.07.1973 and 07.11.1974. The
following reliefs were sought:

(a) decree the suit in favour of
Plaintiffs and against the Defendants,
cancelling the judgment and decree dated
20.07.1972 and Judgment and decree dated
07.11.1974 passed in Civil Suit no. 43 of
1967 by Ld. Civil Judge Mathura;

(b) declare that the judgment and
decree dated 20.07.1973 and the judgment
and decree dated 07.11.1974 and passed in
Civil Suit No. 43 of 1967 by Ld. Civil
Judge, Mathura is not binding on the
Plaintiffs;

(c) Decree the suit for declaration
declaring that land measuring 13.37 acres
of Katra Keshav Dev shown by letters
A,B,C,D and the site plan vest in the deity
Lord Shree Krishna Virajman:

(d) Decree the suit for mandatory
injunction in favour of the Plaintiffs and
against the Defendants no. 1 and 2
directing them to remove the construction
raised by them encroaching upon the land
shown by Letters No.E,B,G,F in the site
plan within the area of Katra Keshav Dev
City Mathura and to handover vacant
possession to Shree Krishna Janmabhoomi
Trust within the time provided by the
Hon'ble Court;

(e) Decree the suit for prohibitory
injunction restraining defendant No.1 and
2, their workers, supporters, men, attorneys
and eerie person acting under them from
entering into premises of 13.37 acres land
at Katra Keshav Dev, City and District
Mathura;
5 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Bhagwan Sri Krishna Virajman & Ors.
299

(f) The Hon'ble Court may pass
any other decree for which Plaintiffs are
found entitled to or which may be
necessary to be passed in the interest of
justice;

(g) Award the costs of the suit."

4. When the suit was presented before
the Civil Judge (Senior Division) on
25.09.2020, the Civil Judge (S.D.), did not
register the suit as a civil suit and in turn
registered the case as a Miscellaneous case
on the ground that the Plaintiff Nos. 3 to 8
are not residents of Mathura whereas the
property in question is situated in District
Mathura. The Civil Judge (S.D.), instead of
registering the suit passed order treating it
as Misc. Case No. 176 of 2020 and fixed
the next date of hearing on the question of
maintainability of suit on 30.09.2020.

5. The Civil Judge (S.D.) dismissed
the Misc Case No. 176 of 2020 at the
threshold
on
the
ground
that
the
Respondents are devotees /worshippers and
if the suit is allowed to be filed, the social
and judicial system will callapse and they
do not have a Right to Sue. The operative
part of the order dated 30.05.2020 holds as
under:

"..8. It is well known that Lord
Krishna is the revered deity of Hindu
religion and is known as an incarnation of
Lord Shri Vishnu. There are innumerable
devotees and worshipers of Lord Shri
Krishna all over the world, if in this way
every devotee and worshipper is allowed to
file a case, then the Judicial and social
system will collapse. Admittedly, the
applicants are not parties to the decree in
question, nor are they as trustees. Granting
permission to the applicants to file a case
on the basis of being merely a devotee does
not appear to be just and reasonable and
filing a case by a devotee is also not
permissible in the eyes of the law.

9.
After
all
the
above
deliberations, it is concluded that the
applicants do not have the Right to Sue for
presenting the present case. There is thus,
no sufficient ground to register the present
case as a regular Suit. Therefore, the Misc.
Case deserves to be dismissed.

Miscellaneous case is dismissed.
File be consigned Record Room."

6.
The
Respondent
nos.
1
to
9/Plaintiffs then filed Appeal no. 02 of
2021 before the District Judge Mathura. At
this stage, on 16.10.2020, the District Judge
issued notice to the Petitioners herein
(Defendants in the Suit). The Petitioners
herein filed Application No. 66-Ga raising
Objection to the maintainability of the
Appeal. Meanwhile, the Civil Judge (S.D.)
also rejected the application of the
Plaintiffs seeking a copy of decree on the
ground that the order dated 30.09.2020 had
not been passed under Order 7 Rule 11
CPC. Accordingly,
vide
order
dated
18.01.2021, the District Judge held that the
order dated 30.09.2020 could not be treated
as an order under Order 7 Rule 11 CPC,
and therefore Appeal was not maintainable.
The Appeal was thus directed to be
registered
as
a
Revision
Petition
consequent to which the same was
registered as Civil Revision No. 02 of
2021.

7. While disposing the Revision
Petition, the District Judge framed many
points on the basis of the arguments raised
on behalf
of
the
Petitioners
herein
(Defendants to the suit) namely:

(i)
whether
the
Revision
is
maintainable or not against the impugned
order dated 30.09.2
020?
300 INDIAN LAW REPORTS ALLAHABAD SERIES

(ii) Whether a worshipper as the
next friend of deity can file suit for the
restoration
and
re-establishment
of
religious rights of the deity?

(iii) Whether the plaintiffs are
entitled to maintain the suit challenging the
compromise judgment and decree dated
20.07.1973 and 07.11.1973 passed in Civil
Suit No.43 of 1967 by Ld. Civil Judge,
Mathura,
on
the
ground
of
fraud,
misrepresentation and collusion?

(iv) Whether the provisions of the
Places of Worships (Special Provisions) Act
1991 will be applicable or not?

(v) Whether the impugned order
suffers from manifest error of law and the
court below has failed to exercise the
jurisdiction vested in it by law?

8. The District Judge gave detailed
findings on each of the above points and
finally set aside the order dated 30.09.2020
by the impugned judgment dated 19.05.2022
holding that the Trial Court had committed
illegality and manifest error, thereby directed
the Trial Court to hear both the parties and
pass appropriate order in light of the
observations made by it in the Revision
Petition.

9. Learned Senior Counsel for the
Respondent nos. 1 to 9 informs that
subsequent to the impugned order, the case
came to be listed before the Trial Court on
26.05.2022 when the Civil suit was registered
as Original Suit No. 353 of 2022 and
summons were issued by the trial court fixing
01.07.2022 for filing the Written Statements
and framing of issues. Thereafter, this Court
by an interim order dated 03.08.2022 in
Petition No. 5967 of 2022 stayed further
proceedings before the trial court.

10. Pleadings are complete. I have
perused the records and heard the parties at
length. With the consent of counsel for the
parties, the present petition is disposed of
finally.

11. Shri W.H. Khan, learned Senior
Counsel for the Petitioner in Petition No.
5967 of 2022 has raised the issue of
pecuniary jurisdiction of the Revisional
Court and has contended that since the
valuation of the Plaint is Rs.42,26,230.40/-
which is more than Rs.25 lakhs, the
revision petition would lie before the High
Court. Also, that the District Judge
committed a manifest error of law by
converting the civil appeal into a civil
revision. The learned Senior Counsel
further submits that the District Judge has
exceeded his jurisdiction in giving findings
on merits on the disputed questions of the
suit and entered into a realm which is
totally beyond his powers.

12. Mrs. Garima Prashad, learned
Senior
Counsel
appearing
for
the
Respondent nos. 1 to 9 contends that the
only question before the Revisional Court
was whether a regular Civil Suit upon its
due presentation before a competent Civil
Court can be refused to be registered as a
Civil Suit, and instead whether it can be
registered
and
dismissed
as
a
Miscellaneous Case. As per the learned
Senior Counsel, there is no provision in
Code of Civil Procedure, 1908 (CPC) to
consider the Plaint as a Miscellaneous case.
The learned Senior Counsel refers to Order
IV of the CPC which mandates registration
of suit upon due presentation, and Order
XIV which provides for framing issues as
well as the preliminary issues. It is
submitted that the trial court erred in
dismissing the suit at the threshold by
wrongly
framing
the
question
of
maintainability of the suit and deciding the
same, without even registering the suit
5 All. U.P. Sunni Central Waqf Board, Lucknow Vs. Bhagwan Sri Krishna Virajman & Ors.
301
itself, and thus, the District Judge was
justified in setting it aside.

13. At this stage, regarding the
aforesaid submission on behalf of the
Respondents, this Court put a specific
query to Shri W. H Khan learned Senior
Counsel for the Petitioners, to which the
Learned Senior Counsel fairly accepted the
legal position that no findings on any issue
could be given by any Court of law on any
civil suit without first registering it as a
civil suit and following the procedure as
per law.

14. In response to the issue of lack of
pecuniary jurisdiction, it is submitted by
Mrs. Garima Prashad, learned Senior
Counsel for the Respondents, that no such
objection was raised before the District
Judge and that the same cannot be raised
for the first time before this Hon'ble Court
in the jurisdiction under Article 227.
Further, Para 83 of the Suit states that the
valuation of the suit for the purposes of
jurisdiction is only Rs.20 lakhs whereas the
figure of Rs.42,26,230.40/- being relied
upon by the Petitioners does not find
mention anywhere in the Plaint and is sum
total of reliefs sought for purposes of Court
fee. It is further submitted that when the
suit itself was not registered, how could the
valuation of the Miscellaneous case be a
subject matter of objection in a revision
petition. Lastly, it is submitted that in any
event, in such a case the Hon'ble High
Court
would
not
interfere
in
its
discretionary powers under Article 226 and
227, because even if the Revision for some
reason was incompetent, the Revision court
had record before it and gave effect to the
correct legal position.

15. In response to the various findings
by the District Judge given on the merits of
case, Mrs. Garima Prashad, learned Senior
counsel submits that the same were made in
view of the arguments raised before the
Revision Court by the Petitioners herein.
She submits that these questions also
cannot be decided by this Hon'ble Court in
jurisdiction under Article 227 and urges
that the stay order dated 03.08.2022 be
vacated and the Trial Court be directed to
proceed with the civil suit in accordance
with law.

16.
Learned
Counsel
for
the
Respondent nos. 10 and 11 adopt the
submissions of the learned Senior Counsel
for the Respondent nos. 1 to 9.

17. At the outset, a perusal of the
record shows that the Civil Suit which was
duly instituted by the plaintiffs was
wrongly registered as a Miscellaneous Case
by the Civil Judge (S.D.). Order IV of the
Code provides for the institution of suits.
Rule 1 of Order IV says suit to commence
by presentation of plaint. Rule 1(2) of
Order IV says every plaint shall comply
with the rules in Order VI and VII, so far as
they are applicable. Order VI relates to
pleadings and Order VII relates to the
contents of the plaint. Upon presentation of
the Plaint, under Rule 2 of Order IV, the
Court ''shall' cause particulars of every suit
to be registered. There is no provision in
CPC to register any regular suit as a
Miscellaneous Case. The Plaintiffs had not
filed any application which could be treated
as a Misc. Case. The Plaintiffs had filed
Suit. The Trial Court treated the Plaint as a
Misc. Case and decided a question of
maintainability of the suit which is not
permissible in law. A plaint duly instituted
u/s 26 of the CPC has to be registered and
in light of provisions contained in Section
27 of CPC, if the suit is duly instituted,
summons have to be issued to the
302 INDIAN LAW REPORTS ALLAHABAD SERIES
Defendants. It is noteworthy to mention
here that the Civil Judge (S.D.), has not
even exercised its powers under order 7
Rule 11 of the CPC and has rejected the
plaint duly presented by treating it as a
Miscellaneous Case. The Trial Court
therefore clearly committed manifest error
of law in registering the suit as a
Miscellaneous case and hearing it on the
question of maintainability.

18. The Plaintiffs had filed an Appeal
against the order dated 30.09.2020 treating
the order to be passed under Order 7 Rule
11 CPC. The District Judge held by order
dated 18.01.2021 that the order dated
30.09.2020 could not be treated as an order
under Order 7 Rule 11 CPC and therefore
held that Appeal was not maintainable,
Revision was maintainable and directed the
Revision to be numbered accordingly. It is
well settled that if an appeal has been filed
against an order or decree against which no
appeal is maintainable, the Court can treat
the appeal as revision. I also find that this
order dated 18.01.2021 bas been challenged
and instead the parties participated in
revision proceedings before the District Judge
over several hearings and raised all their
contentions. No objection was raised as to the
lack of pecuniary jurisdiction before the District
judge in revision proceedings and this issue
cannot be permitted to be raised by the
Petitioners for the first time before this Court in
jurisdiction under Article 227. It is noteworthy
to mention that at Para 83 of the plaint, the
valuation of the suit is stated as Rs.20,00,000/-
and as per the provisions of Section 115 of CPC
r/w Chapter II of Civil Laws Uttar Pradesh
(Amendment) Act 2019 the Revision u/s 115 of
CPC upto Rs 25,00,000/- would lie before the
District Judge.

19. The District Judge framed many
points on the basis of the arguments raised
on behalf of the Defendants, as recorded in
the impugned judgment. These questions
were not needed to be decided as the
Defendant had right to file its Written
Statement, deny the facts and law therein,
and the Court under Order 14 Rule 1 CPC
was then to frame issues and after issues
were framed, parties are entitled to lead
evidence. In absence of framing of issues
and permitting parties to lead evidence,
matter could not have been decided. It was
however, open to decide the question of
preliminary issues, but as to what will be
the preliminary issues will also have to be
decided under Order XIV Rule 2(ii) CPC
being jurisdiction of the court and bar
created by any law. Entire procedure laid
down in law has been by-passed and
findings on the merits of the case have been
given which is not permissible in law.

20. At the time of dismissing the suit,
the Civil Judge (Senior Division) had not
issued
summons
to
the
Defendants
(Petitioners herein) and therefore, the
question of registration of the suit was
between the court and the plaintiffs. The
Defendant comes into picture the moment
summons are issued to him.

21. This Court is conscious that the
questions regarding the maintainability of a
regular civil suit and its merits, which
could not have been decided by the Trial
Court without following the due procedure
as per the Code, and further the contentious
questions were not required to be decided
by the District Judge in a Revision Petition.
In any case, these questions cannot be now
decided by this Court in a petition under
Article 227. Any observations by this Court
will prejudice the rights and contentions of
both the parties. The suit has now been
registered as suit no. 353 of 2022.
Summons have already been issued by the
5 All. Dinesh Chandra @ Dinesh Chandra Tiwari & Ors. Vs. Deputy Director of Consolidation,
 Sultanpur & Ors.
303
trial court on 26.05.2022 for filing the
respective Written Statements and framing
of issues.

22. In light of the above, both the
petitions are disposed of by remanding the
matter back to the Trial Court with
directions to adjudicate the Civil Suit no.
353 of 2022 after following due procedure
as per law without being influenced by any
observation or findings of the District
Judge
vide
impugned
order
dated
19.05.2022. All the parties are free to raise
all their contentions before the trial Court.
----------
(2023) 5 ILRA 303
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 03.05.2023

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Writ B No. 229 of 2023
connected with
Writ B No. 245 of 2023
And
Writ B No. 232 of 2023

Dinesh Chandra @ Dinesh Chandra Tiwari
& Ors. ...Petitioners
Versus
Deputy
Director
of
Consolidation,
Sultanpur & Ors. ...Respondents

Counsel for the Petitioners:
Vivek Tripathi

Counsel for the Respondents:
C.S.C., Prabhat Kumar

A. Practice and Procedure - Constitution
of India,1950 - Article 226 & 227 - Writ -
Maintainability - Order was passed by the
Revenue Court in the title matter -
Quashing sought - Whether remedy is the
petition under Article 227 or under Article
226 - Held, Judicial orders of civil court
are not amenable to writ jurisdiction
under Article 226 of the Constitution and
jurisdiction under Article 227 is distinct
from jurisdiction under Article 226 - The
Revenue Court is not the Judicial/ Civil
Court - The orders passed by the revenue
authority or consolidation authority are
not the orders being passed by judicial
authority/Civil
Courts
-
High
Court
rejected
the
preliminary
objections
regarding maintainability of the writ
petitions
under
Article
226
of
the
Constitution of India. (Para 16, 22 and 27)

B. UP Consolidation of Holding Act, 1953 -
Civil Procedure Code,1908 - Section 5(2)
- Consolidation Court - Nature - Whether
it is Civil Court or Revenue Court - Held,
the Consolidation Officers may not be
treated as Officers of the Civil Court,
however, they may more or less be
treated as Revenue Officers - The revenue
authorities/consolidation
authorities
when
discharge
their
judicial/quasi
judicial functions used to follow the
specific
mandate
and
mechanism
so
prescribed under the Statute and quite
often, those officers are not trained
judicial officers but being prescribed
authorities under the particular Statute,
they
discharge
their
functions
as
revenue/consolidation
officer.
In
that
way, they may not be treated at par with
the judicial officers of the Civil Court and
therefore, they are not judicial/Civil Court.
At the best, it may be said that they
discharge their duties and functions as
Tribunal. (Para 14 and 26)

Preliminary
objection
regarding
the
maintainability of Writ petition rejected.
(E-1)

List of Cases cited:

1. Shalini Shyam Shetty & anr. Vs Rajendra
Shankar Patil; (2010) 8 SCC329

2.
Suraj
Singh
Vs
Deputy
Director
of
Consolidation, Jhansi & ors.; 2016 (34) LCD
1860