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PARVEZ ALI KHAN & OTHERS versus ADDL. DISTRICT JUDGE & ANOTHER

High Court of Judicature at Allahabad

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Parvez Ali Khan & Others v. Addl. District Judge & Another - WRIT - C No. 24374 of 2003 [2006] RD-AH 5113 (3 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Hon.Shishir Kumar, J.

The present writ petition has been filed for quashing the order-dated 21.5.2003 (Annexure 1 to the writ petition).

The facts arising out of the present writ petition are that mother of the petitioners filed a suit for permanent injunction and declaration against the respondent No.2, which was numbered as Civil Suit No.726 of 1995. The respondent No.2 filed a written statement and during the pendency of the said suit, Smt. Nayab Begum, plaintiff died on 12.8.2001 leaving behind her heirs sons who are the petitioners in the writ petition. The petitioners being the heirs of Late Smt. Nayab Begum, plaintiff, moved an application to substitute their names in the array of the plaintiffs as plaintiffs Nos. 1/1 to ¼ with necessary amendment. The respondent No.2 filed an objection against the said application and a reply to that effect was also filed by the petitioners.  After hearing both the parties on merits  and after perusing the record, the Trial Court allowed the application on 17.5.2002.  The respondent No.2 being aggrieved by the aforesaid order dated 17.5.2002 filed a revision before the respondent No.1 and the revisional Court has allowed the revision and has set aside the order-dated 17.5.2002.  It has been submitted on behalf of the petitioners that mother of the petitioners filed a suit for permanent injunction against the respondent No.2 on the basis that she was the owner of the house and her husband late Akhlaq Ali Khan was doctor and was doing practice in the ground floor and he was leaving with the family on the upper floor.  The respondent No.2 was only a compounder and after the death of her husband the respondent No.2 wants to grab the clinic while her son Parvez Ali was a doctor and was practicing in the said clinic but the respondent No.2 was interfering therefore, the Trail Court has also granted an injunction in favour of the plaintiff petitioners.  The various documents were filed.  

The Revisional Court without applying his mind has allowed the revision of the respondent No.2 and set aside the order which is wholly illegal and against the evidence on record.  It is well settled that the Revisional Court cannot reappraise the evidence and without setting aside the finding recorded by the Trial Court the revisional Court has got no jurisdiction to allow the revision.  The Revisional Court has committed a manifest error in law by allowing the revision of the respondent No.2.  The application No.383 K was only to substitute their names in place of her mother Late Nayab Begum but the revisional Court has set aside the same. If the revisional Court was of the opinion that allowing the application of the petitioners was not in accordance with law and the objections raised on behalf of the respondent No.2 have not been considered, the revisional court ought to have remanded back the matter to the Trial Court while exercising the jurisdiction under Section 115 of the Code of Civil procedure.  The Revisional Court has got no jurisdiction to reappraise the evidence.    

On the other hand, the counsel for the respondents submitted that as all the daughters and one of the son who has adopted the Hindu religion was not impleaded as a party and a specific objection to that effect was taken by the respondents but the Trial Court has not considered each and every documents filed on behalf of the respondents.  As one of the objection was that the application filed by the petitioners was not an application of substitution, as such, the same was not maintainable by way of amendment application.  The Revisional Court has considered the said legal aspect and has come to the conclusion that allowing an application by the Trial Court, the Trial Court has committed an illegality which is apparent on the face of record, as such, the revision was  allowed vide its judgment and order dated 17.5.2002.  The writ petition is liable to be dismissed.

I have heard learned counsel for the petitioners and learned Standing Counsel and have perused the record.

From the perusal of the application filed on behalf of the petitioners it clearly appears that the averment in the said application is relating to the substitution of the heirs of the deceased late Nayab Begum but in the heading, the petitioners have mentioned amendment application but in the body the averment made clearly goes to show that it was a substitution application.  The Trial Court in view of the aforesaid fact, though an objection was raised by the defendant respondent has allowed the application. The Revisional Court has considered the various objections raised on behalf of the respondents that the daughters have not been impleaded and the application itself was not maintainable, as such, allow the revision.

In my view, if the Revisional Court was of the opinion that certain heirs of the deceased have not been impleaded, or mentioned in the application, the revisional court ought to have remanded the matter to the Trial Court for decision as a fresh.  While exercising the powers under section 115 of C.P.C., the Revisional Court has no jurisdiction to reappraise the evidence.  But if the Revisional Court has come to the conclusion that the Trial Court has not considered the various documents and evidence produced by the parties, and the objection raised by any of the party have not been considered properly then the revisional court should have remanded the matter to the Trial Court but in the present case, the revisional Court has allowed the revision and has quashed the order passed by the Trial Court without setting aside the finding recorded by the Trial Court.

In such a situation, I am of the opinion, that justice demands that matter be remanded  back to the Trial Court for decision as a fresh. But as the Trial Court has taken into consideration the fact that rejecting the said application amounts to injustice to the petitioners as such, treating that application as substitution application, has allowed the same vide its judgment and order dated 17.5.2002.

In such circumstances, I am of the opinion, that it will be necessary in the expedient of justice that order dated 21.5.2003 is hereby quashed and the matter is remanded back to the revisional Court for passing appropriate orders after affording fully opportunity to the parties.

The writ petition is allowed.

There shall be no order as to costs.

3.3.2006

SKD/24374/2003              


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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