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VISHNU PRASAD & ANOTHER versus ADDL. COMMISSIONER, VARANASI DIVISINO, VARANASI & OTHERS

High Court of Judicature at Allahabad

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Vishnu Prasad & Another v. Addl. Commissioner, Varanasi Divisino, Varanasi & Others - WRIT - C No. 40096 of 2006 [2006] RD-AH 13147 (7 August 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

Civil Misc. Writ Petition No. 40096 of 2006

Vishnu Prasad & Another...................Petitioners

Versus

Additional Commissioner, Varanasi Division, Varanasi

& Others...Respondents

Hon'ble Krishna Murari,J.

A short counter affidavit filed on behalf of respondent no. 3, is taken on record.

Heard Sri Triveni Shankar, learned counsel for the petitioners and Sri Subodh Kumar, learned counsel appearing for the contesting respondent no. 3.

The dispute relates to plot no. 1231 situate in Mauza Hingutergarh Jagdishpur, Pargana Mahaich, Tehsil- Sakaldeeha, District- Chandauli which was recorded in the name of Ram Narain. On death of Ram Narain, the name of his wife respondent no. 3 came to be recorded in his place on the basis of succession. Subsequently, an application was moved by the petitioners claiming rights on the basis of a will alleged to have been executed in their favour by deceased Ram Narain. Vide order dated 28.01.2004, Naib Tehsildar allowed the application of the petitioners and directed their names to be recorded. Thereafter, respondent no. 3 filed a restoration application dated 27.7.2004 to recall the order dated 28.1.2004 on the ground that it was an ex parte order passed behind her back. The said application was allowed by the Naib Tehsildar vide order dated 30.7.2004. The petitioners, thereafter, moved an application to recall the order dated 30.7.2004 on the ground that it was passed without issuing any notice to them. The Naib Tehsildar vide order dated 9.6.2005 recalled the order dated 28.1.2004 on the finding that it was passed without notice or opportunity of hearing to respondent no. 3 who was the natural heir of the deceased. Aggrieved by the said order, the petitioners filed a revision, which was dismissed, vide order dated 26.6.2006. Aggrieved, the petitioners have approached this Court.

It has been vehemently urged by the learned counsel for the petitioners that the order dated 9.6.2005 was passed by Naib Tehsildar illegally without deciding the restoration application dated 4.9.2004 filed by the petitioners to recall the ex parte order dated 30.7.2004. It is also contended that the revision against the order of Naib Tehsildar has also wrongly and illegally been rejected by the Revisional Court.

In reply, it has been contended by the learned counsel appearing for the respondent no. 3 that by the impugned order the Naib Tehsildar has directed to decide the case after hearing both the parties and thus substantial justice has been done between the parties and as such the impugned order does not call for any interference.

I have considered the arguments advanced by the learned counsel for the parties and perused the record.

Admittedly, the claim of the petitioners on the basis of a will was allowed ex parte by Naib Tehsildar vide order dated 28.1.2004. The said order was passed without any notice or opportunity of hearing to respondent no. 3 who was a natural successor of the deceased. By the impugned order the Court below has directed to decide the case afresh after opportunity of evidence to both the parties. Thus, in effect, substantial justice has been done between the parties. It is always in the interest of justice that dispute between the parties should be adjudicated on merits after affording opportunity of hearing to them rather on mere technicality.

In view of the aforesaid, the impugned order does not call for any interference by this Court. The writ petition accordingly fails and is dismissed.

However, considering the facts and circumstances, respondent no. 2 is directed to decide the dispute pending before him  in accordance with law within a period of four months from the date of production of certified copy of this order before him.

Dt.7.8.2006


Copyright

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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