# Virendra Singh and others v. The Additional Commissioner and others

- **Citation:** (2002) 3 ILRA 709
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-09-11
- **Case number:** Civil Misc. Writ Petition No. 11095 of 1994
- **Bench:** Vineet Saran
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-singh-and-others-v-the-additional-commissioner-and-others-39988
- **Pages:** 3

## Headnote

710 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Constitution of India- Article 226- even
though the order dated 30.10.1992 may
have been passed on merit, it is not
disputed that before the prescribed
authority the petitioner was not heard
before
passing
of
the
said
order.
Valuable rights of the petitioners have
been affected because of having been
denied an opportunity of hearing. (Held
in para 5)

## Text

http://www.allahabadhighcourt.nic.in
3 All] Brij Mohan Singh V. District Panchayat Raj Officer and others
709
of the Constitution of India. Be that as it
may, the contention of the learned counsel
for the petitioner is that the order passed
in civil suit on the basis of which the
Panchayat Raj Officer has passed the
impugned order is not proper in view of
the fact that the civil suit itself is not
maintainable
and
barred
under
the
provisions of the U.P. Panchayat Raj Act.

2. If the suit is not maintainable
since it is barred under the specific
statute, in our view there is adequate
remedy under the Code of Civil Procedure
itself and proper course for the petitioner
shall be to make an application before the
Civil Judge for rejection of the plaint
under Order VII Rule 11(d) of the Code
of
Civil
Misc.
Writ
Petition
No.
Procedure. The learned counsel for the
petitioner fairly conceded to the view
taken by us in the matter and has
submitted the proper course in such
circumstances is to make an application
for rejection of the plaint under Order VII
Rule 11 (d) of the Code of Civil.
Procedure which is set out herein below:

3. 11. Rejection of plaint: The
plaint shall be rejected in the following
cases:-

(a) where it does not disclose a cause of
action;
(b) where
the
relief
claimed
is
undervalued, and the plaintiff, on being
required by the Court to correct the
valuation within a time to be fixed by the
Court, fails to do so;
(c) where the relief claimed is property
valued but the plaint is written upon paper
insufficiently stamped, and the plaintiff,
on being required by the Court to supply
the requisite stamp-paper within a time to
be fixed by the Court, fails to do so;
(d) where the suit appears from the
statement in the plaint to be barred by any
law:

4. It is clear from the aforesaid
provision that if the suit is barred under
any particular statute, it is open to the
defendant
to
make
application
for
rejection of the plaint. Since the petitioner
is defendant in the suit, he shall be at
liberty to make such application under
Order VII Rule 11 (d), if he is so advised,
before the Civil Judge concerned and in
case such application is made it shall be
disposed by the learned Civil Judge as
early as possible after hearing the plaintiff
and other defendants in accordance with
law. It is made clear that we have not
adjudicated the case upon merit and the
learned Civil Judge shall be at liberty to
proceed in accordance with law. The writ
petition which has been treated as an
application under Article 227 of the
Constitution stands dismissed subject to
the observations made above.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.9.2002

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 11095 of 1994

Virendra Singh and others ...Petitioners
Versus
The Additional Commissioner and others

 ...Respondents

Counsel for the Petitioners:
Sri Ganga Prasad
Sri Mahendra Narain Singh
Sri Vinod Kumar Singh

Counsel for the Respondents:
S.C.
http://www.allahabadhighcourt.nic.in
710 INDIAN LAW REPORTS ALLAHABAD SERIES [2002
Constitution of India- Article 226- even
though the order dated 30.10.1992 may
have been passed on merit, it is not
disputed that before the prescribed
authority the petitioner was not heard
before
passing
of
the
said
order.
Valuable rights of the petitioners have
been affected because of having been
denied an opportunity of hearing. (Held
in para 5)

(Delivered by Hon'ble Vineet Saran, J.)

1. This writ petition has been filed
challenging the orders dated 30.10.1992
and 9.2.1993 passed by respondent no. 2
Prescribed Authority, Firozabad, and also
order
dated
18.2.1994
passed
by
respondent
no.
1,
Additional
Commissioner
(Administrative)
Agra
Division, Agra.

2. The brief facts of the case are that
in pursuance of the notice under section
10 (2) of U.P. Imposition of Ceiling on
Land Holdings Act (hereinafter referred
to as the Act) certain land of the
petitioners was declared surplus by the
prescribed authority vide order dated
27.2.1990. Against the said order the
petitioners
filed
an
appeal
before
respondent
no.
1,
Additional
Commissioner
(Administrative)
Agra
Division, Agra, which was allowed and
the matter was remanded back to the
prescribed authority on 28.5.1992. The
prescribed authority on 30.10.1992 upheld
its decision given on 28.12.1974. On the
said date, learned counsel appearing for
the petitioners could not appear before the
prescribed authority and hence the order
was passed ex-parte. After passing of the
aforesaid order the petitioners filed
restoration application which was also
rejected by the prescribed authority on
9.2.1993. Against the aforesaid orders
dated 30.10.1992 and 9.2.1993 passed on
the restoration application, the petitioners
filed an appeal before the Additional
Commissioner
(Administrative)
Agra
Division, Agra, respondent no. 1, which
was
also
dismissed
on
18.2.1994
primarily on the ground that the order
dated 30.10.1992 had been passed on
merits.

3. I have heard Sri Mahendra Narain
Singh, learned counsel appearing for the
petitioners as well as the learned Standing
Counsel appearing for the respondents.

4. It is not disputed that after remand
of the case, the order dated 30.10.1992
was passed by the prescribed authority
without hearing the petitioners even
though the case may have decided the
case on merits. The petitioner did not get
an opportunity of hearing.

5. Having heard learned counsel for
the parties and on perusal of the record, in
my view, even though the order dated
30.10.1992 may have been passed on
merit, it is not disputed that before the
prescribed authority the petitioner was not
heard before passing of the said order.
Valuable rights of the petitioners have
been affected because of having been
denied an opportunity of hearing. Thus, in
the
circumstances
the
orders
dated
30.10.1992 and 18.2.1994 passed by
prescribed Authority, Firozabad, and the
Additional
Commissioner
(Administrative) Agra Division, Agra, are
set aside and the case is remanded back to
the
Prescribed
Authority,
Firozabad,
respondent no. 2 for being decided afresh
on merits after giving an opportunity of
hearing to the parties.
http://www.allahabadhighcourt.nic.in
3 All] Virendra Singh and others V. The Addl. Commissioner and others
711

6. The writ petition is allowed.
However, there shall be no order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.10.2002

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 22712 of 2002

Devkinandan

...Petitioner
Versus
Civil Judge(Senior Division) and other s

 ...Respondents

Counsel for the Petitioner:
Sri S.K. Dixit
Sri S.N. Singh
Sri A.K. Rai

Counsel for the Respondents:
Sri Rajesh Chandra Gupta
S.C.

Constitution
of
India,
Article
226-
Practice
and
Procedure-
forcible
ejectment of a tenant-plea taken about
the expiry of the period of tenancy- held-
such action of putting lock on the shop-
illegal-except in accordance with law
even a person in rank of trespasser can
not be ejected- petition allowed- Specific
directions
issued
to
remain
in
possession.

Held- Para 10

It has been held by the Supreme Court in
Samir Sobhan Sanyal vs. Track Trade Pvt.
Limited AIR 1996 SC 2102 that a tenant
cannot be dispossessed without due
process of law. Even assuming that the
period of tenancy has expired, one
cannot take law into one's own hand and
forcibly throw out the erstwhile tenant
but may file a suit for eviction. Instead
of filng the suit the respondents 5 and 7
placed their lock in the shop in question
which in our opinion was wholly illegal.
Case Law discussed:
AIR 1996SC 2102 relied on

(Delivered by Hon'ble M. Katju, J.)

1. The writ petition has been filed
for a mandamus directing the respondents
2,3 and 4 to help the respondents 5 to 8 to
interfere in the peaceful possession of the
petitioner over the shop in dispute. It has
also been prayed that the respondent no. 1
be directed to open the lock placed on the
shop of the petitioner and to ensure that
the injunction order dated 4.7.2001 in suit
no. 308 of 2001 is complied with.

2. Heard learned counsel for the
parties.

The petitioner has alleged that he
was a tenant of a shop called 'Bhaiyaji
General Store' in Gautam Buddha Nagar.
It is alleged that this shop was owned
jointly by respondent 5,6,7 and 8 who
entered into a family settlement whereby
the respondent no. 6 became the sole
owner of the said shop and a room which
is situated on its western side. The
petitioner purchased this shop from the
respondent no. 6 vide sale deed executed
on 18.4.2001 by the respondent no. 6 in
favour of the petitioner. True copy of the
sale deed is Annexure 3 to the writ
petition.

3. In paragraph 11 of the writ
petition it is stated that on 17.6.2001 the
respondent no. 5 and 7 sent hooligans
(gundas) and anti social elements to
vacate the shop and hence the petitioner
submitted a complaint before the S.H.O.
Dadri, Gautam Buddha Nagar but nothing
was done. True copy of the complaint