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Charitar v. Ivth A.D.J., Azamgarh & Others - WRIT - C No. 22094 of 1987 [2004] RD-AH 1010 (4 October 2004)


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Court No. 51

Civil Misc. Writ Petition No. 22094 of 1987

Charitar                                                      ----                   Petitioner


IVth Additional District Judge, Azamgarh & others      --        Respondents.


Hon'ble V.C.Misra, J.

Heard learned counsel for the petitioner and learned Standing counsel appearing for respondents no. 1, 2 & 7. No one has appeared on behalf of the respondents no. 3 to 6. In this writ petition no counter affidavit has been filed on behalf of the respondents till date.

1. The facts of the case in brief are that on 29.4.1978 Suit No. 238 of 1978 was filed by the Pradhan of Gaon Sabha- respondent no. 3 for permanent injunction and in the alternative seeking prayer of possession over the plot nos. 129 area admeasuring 559 links; 132 area admeasuring 252 links; 157 area admeasuring 432 links and 158 area admeasuring 80 links of village Adampur on the ground that the defendants, petitioner herein was one of the defendants, were threatening to convert the Gaon Sabha land into their abadi but no resolution for preferring the said suit was passed by the Land Management Committee.  A written statement was filed by the petitioner that land in suit was his abadi and his building existed on the spot from prior to abolition of Zamindari. On the complaint made by the petitioner before the Collector that the suit was filed on the instigation of the Pradhan due to enmity with the petitioner, an inquiry was made and Tehsildar submitted his report that an old house of the petitioner existed on the spot and the land, in dispute, was abadi.  On the basis of this report the District Government Counsel (Civil) gave an opinion to the Collector recommending withdrawal of the above said suit.  In consequence of that recommendation, the petitioner filed an application


seeking dismissal of the suit in terms of the letter dated 17.4.1982 and directions were issued by the Collector.  The application of the petitioner was allowed and the suit was dismissed on 16.10.1982 by the trial court and a decree was passed.  On 18.10.1982 the Pradhan of the village filed an application for recall of the order dated 16.10.1982, without any resolution or authorization of the Land Management Committee to which the petitioner filed his objection dated 16.9.1983.  The trial court vide its order dated 15.7.1986 (Annexure No. 7 to the writ petition) after haring the parties allowed the application of the Pradhan and restored the suit to tits original number.  Being aggrieved, the petitioner filed Revision No. 235 of 1986 before the District Judge, Azamgarh that was dismissed by respondent no. 1-IVth Additional District Judge, Azamgarh vide its order dated 7.9.1987 (Annexure No. 9 to the writ petition).

2. The petitioner, being aggrieved, filed the present writ petition for quashing the impugned orders dated 15.7.1986 (Annexure no. 7 to the writ petition) passed by the respondent no. 2- IX Additional Munsif, Azamgarh and dated 7.9.1987 (Annexure No. 9 to the writ petition) passed by the respondent no. 1- IVth Additional District Judge, Azamgarh on the grounds, inter alia, firstly, that once a suit was dismissed as withdrawn on the written permission of the Collector after obtaining opinion of the District Government Counsel (Civil) the said order of dismissal could not be set aside on an application filed without any resolution or authorization of the Gaon Sabha/ Land management Committee to file the above mentioned suit or even to move recall application, secondly, that a judicial order passed after hearing learned counsel for the parties could not be recalled on the basis of an administrative order or direction, thirdly, that the order dated 16.10.1982 was not an ex-parte order but had been passed in the presence and after hearing the learned counsel for the parties, therefore, no recall application


was maintainable and lastly, the above suit was not maintainable due to non compliance of the provisions of Para  128 of the Gaon Sabha Manual which is mandatory.

3. Learned counsel for the petitioner has placed reliance upon the decision of this Court rendered in Gram Samaj Kairadih Vs. Dy. Director of Consolidation U.P. Lucknow & others (1969 A.W.R. 500) on the point that Para 128 of the Gaon Samaj Manual is complete, reasonable and equitable and the same is mandatory.  The Chairman of the Land Management Committee could not have filed a written statement or preferred an appeal or revision without the Land Management Committee having passed a resolution, or the action of the Chairman being ratified by the Land Management Committee in the next ensuing meeting. Learned counsel for the petitioner has submitted that since no resolution had been passed in the instant case, hence neither the written statement nor the appeal nor the revision were maintainable.

4 Since the respondents have not filed any counter affidavit in rebuttal to controvert the averments made in the writ petition till date, inspite of time being granted to them repeatedly, this Court is left with no option but to accept the averments made in the writ petition to be correct and true, since it is settled law, that if no affidavit in rebuttal is filed and the averments made in the affidavit are not controverted then the said averments must be accepted as true and correct and the presumption is drawn in favour of the petitioner, in terms of Section 114 Illustration (G) of the Evidence Act, as laid down in catena of decisions including A.I.R. 1966 Alld. page 156, A.I.R. 1962 Alld. page 407, A.I.R. 1987 S.C. page 479 and 1999 (82) Factory Law Report, page 709.

5. From the facts and circumstances of the case averred in the writ petition and from perusal of the impugned orders, I am satisfied that the


respondents no. 1 and 2, both, have committed manifest error of law and procedure in passing the impugned orders and the facts of the case of Gram Samaj Kairadih (Supra) cited by the learned counsel for the petitioner squarely cover the facts of the present case.

In view of the above said facts and circumstances of the case, settled law and observations made herein above, the writ petition is allowed. The impugned orders dated 15.7.1986 (Annexure No. 7 to the writ petition) passed by the respondent No. 2- IXth Additional Munsif Azamgarh and 7.9.1987 (Annexure No. 9 to the writ petition) passed by the respondent no. 1- IVth Additional District Judge, Azamgarh, respectively, are hereby quashed. There will be no order as to costs.

Dt. 4.10.2004



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