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Hariher Prasad Chaudhary & Others v. Smt. Bhaghirthi Devi & Others - SECOND APPEAL No. 1004 of 1998 [2005] RD-AH 10 (1 January 2005)


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Hon'ble Umeshwar Pandey, J.

Heard Sri Triveni Shanker for the respondent No. 7-Banaras Hindu University. None is present on behalf of the appellants.

This application under Section 151 C.P.C. has been moved for expunging the observation of this court recorded at page No. 6 of the order dated 24.8.1998 passed while dismissing the second appeal in limine.

The appellants after service of notice have not appeared and have also not filed any counter affidavit.

Learned counsel appearing for the respondent/applicant contends that the observation of this court at the aforesaid page no.-6 of the order in question is injurious to the  interest of the respondent-Banaras Hindu University in so-far-as it holds that the University could not be said to be zamindar of the land in question. Since, no notice before passing this order was given to the respondent, the interference against the aforesaid observation is required under Section 151 C.P.C.

I do not agree with the contention of the learned counsel. It is evident from the order itself that this observation has come while passing dismissal order of the appeal in limine. A court dismissing the appeal in limine is not required to issue notice to the respondents. Issuing a notice would not be in the spirit of the provisions of Order XLI, Rule 31 C.P.C.. As regards the observation aforesaid, the Hon'ble Judge, while dismissing this appeal, has found that the land in question was acquired for the educational institution and vide Notification dated 1st July, 1952, it was also declared as work of public utility. The zamindari over the property did not remain any more as it was notified as land for public utility within the meaning of Section 2 of U.P.Z.A. & L.R. Act after its acquisition and vesting with the respondent - B.H.U. This observation of the Hon'ble Judge in the order challenged is wholly justified and as such, cannot be expunged on a petition moved under Section 151 C.P.C.

The petition having no force is hereby dismissed.




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