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DINESH KUMAR PALIWAL versus SMT. PUSHPA PALIWAL AND ANOTHER

High Court of Judicature at Allahabad

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Dinesh Kumar Paliwal v. Smt. Pushpa Paliwal And Another - WRIT - A No. 22326 of 2005 [2006] RD-AH 17282 (6 October 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

 Judgment reserved on 20.9.2006

Judgment delivered on 6.10.2006                                                                

         Civil Misc. Writ Petition on No. 22326 of 2005

Dinesh Kumar Paliwal                                                       Petitioner

                                                         Versus

Smt. Pushpa Paliwal and another.                                   Respondents

Counsel for the petitioner:-  Sri  Madhav Jain, Advocate

Counsel for the respondents:-Sri P.C. Jain, Advocate                          

Hon'ble Rakesh Tiwari, J

             Heard counsel for the parties and perused the record.

                  This writ petition has been filed for quashing the impugned judgment dated 9.3.2005 passed by Special Judge E.C. Act/Additional District Judge, Agra in S.C.C. Revision No. 46 of 2004 arising out of order dated 31.7.2004 passed by the Judge Small Causes Court, Agra in Misc. Case No. 38 of 2004 in S.C.C. Suit No. 286 of 1984.

      Brief facts of the case are that suit no. 286 of 1984 was filed by respondent no.1 against Ramesh Dutt Paliwal father of the petitioner for recovery of rent and ejectment, claiming herself to be owner and landlord of the property on the basis of will alleged to have been executed by Smt.Sukh Devi wife of Sri Krishna Dutta Paliwal.

Ramesh Dutt Paliwal sole defendant of Suit No. 286 of 1984 filed his written statement repudiating the plaint allegations. The defendant denied the relationship of landlord and tenant between the parties and claimed himself to be the owner of the property on the basis of the Will dated 29.5.1998 executed by Sri Krishna Dutt Paliwal besides being the natural heir of Sri Krishna Dutt Paliwal.

Ramesh Dutt Paliwal died on 18.11.2001. A substitution application for bringing on record his legal heirs and representatives was filed before the trial Court which was dismissed by order dated 16.10.2003 on the ground that the said application had been filed after expiry of period of limitation. Respondent no.1 then filed Civil Revision No. 74 of 2003 challenging the validity and correctness of the order dated 16.10.2003 which was too dismissed by order dated 12.11.2003 by the Addl. District Judge, Agra.

A review application was filed by respondent no.1 against the order dated 16.10.2003 which was also dismissed vide order dated 4.3.2003 by the trial Court.

It is submitted that during the pendency of the review application respondent no.1 filed application seeking to set aside the order of abatement and also to condone the delay in filing the substitution application which were also rejected vide order dated 31.7.2004 by the trial Court on the ground that the application for substitution has already been dismissed on 16.10.2003 and without there being any substitution application seeking to substitute the heirs and legal representative of the deceased, application for setting aside abetment and condonation of delay is not maintainable.

Aggrieved by the aforesaid order dated 31.7.2004 respondent no.1 filed S.C.C. Revision No. 46 of 2004 before the Revisional Court. The Revisional Court by its order dated 9.3.2005 allowed the Civil Revision and set aside the order dated 31.7.2004 and also the order dated 16.10.2003, hence this writ petition.

Submissions on behalf of the petitioner:

The counsel for the petitioner submits that the Revisional Court has committed illegality in allowing the revision of the respondents by setting aside the orders dated 31.7.2004 and 16.10.2003 and since the judgment passed by the Revisional Court is a judgment of reversal, it ought to have considered and set aside the findings recorded by the trial Court and in the absence of reasons contrary to the finding recorded by the trial Court the judgment of reversal passed by the Revisional Court is not maintainable.

In support of the said contention he has relied upon the case of Santosh Hazari Vs. Purushottam Tiwari ( deceased) through L.Rs., 2001(1) A.W.C. 824 SC-824.

He further submits that the Revisional Court exceeded its revisional jurisdiction while setting aside the order dated 16.10.2003 and allowing the substitution application though the order dated 16.10.2003 and the substitution application was not subject matter of consideration in S.C.C. Revision No. 46 of 2004 beside the validity of order dated 16.10.2003 has attained finality in view of dismissal of Civil Revision No. 74 of 2003 vide order dated 12.11.2003. It was not open to the Revisional Court to sit in appeal over the order passed by the Court of Co-ordinate jurisdiction.

He also submits that the plaintiff/respondent no.1 having not invoked the jurisdiction of the Court with clean hands while seeking to condone the delay in filing the substitution application and for setting aside order of abetment, respondent no.1 purposely has not disclosed the factum about filing of Civil Revision No. 74 of 2003 nor about filing of the review application dated 21.10.2003 by the plaintiff against order dated 16.10.2003 and since the respondent has not invoked the discretionary jurisdiction of the Court with clean hands she is not entitled for the discretionary relief.

It is next submitted that application seeking to set aside the order of abatement and condonation of delay in filing the substitution application, it is stated that the substitution application dated 4.9.2003 filed by the plaintiff/respondent no.1 has already been dismissed on 16.10.2003 and the Civil Revision No. 74 of 2003 filed by  respondent no.1 against order dated 16.10.2003 has already been dismissed on 12.11.2003 and in absence of fresh substitution application having been filed/or pending before the Court below the application for setting aside abatement in filing the substitution application and condonation of delay was absolutely misconceived and not maintainable; that for maintaining the application for setting aside abetment and condonation of delay in filing the substitution application pendency of the substitution application is sine-qua-non and in the absence of pendency of the substitution application. The application seeking to condone delay and set aside abetment is absolutely misconceived and not maintainable and that the  Revisional Court has failed to consider that the consequence for not substituting the heirs and legal representative of the deceased is automatic and after expiry of period of limitation for filing the substitution application the proceedings of suit no. 286 of 1984 in this regard  stand abated automatically.

He also submits that since the Revisional Court has committed error apparent on the face of the record while allowing Civil Revision No. 46 of 2003 and setting aside orders dated 31.7.2004 and 16.10.2003 the judgment dated 9.3.2005 does not enjoy immunity from challenge under Article 226 of the Constitution of India.

In support of this contention the learned counsel for the petitioner has relied upon para 12 of the judgment reported in 2006(1) ARC-621 Kishroe  Kumar Khaitan and another Vs. Praveen Kumar Singh.

He further submits that in so far as the substitution application filed in writ petition is concerned, the proceedings of the writ petition is not in continuation of the suit inasmuch as the same was filed against the order rejecting application under Section 10 of the Code of Civil Procedure and the substitution made in the writ petition will not enure to the proceedings of Suit No. 286 of 1984.

         In this regard he has placed reliance upon the case of  State of Uttar Pradesh and others Vs. Dr. Vijay Anand Maharaj, AIR 1963 SC-946 and paras 4 and 5 of the judgment rendered in AIR 1992 Allahabad page-178 Bishambhar and another Vs. IIIrd Addl. District Judge, Azamgarh and others.

Submissions on behalf of the respondents.

The counsel for the respondents submits that in writ petition no. 6079 of 1993, the present petitioner did not plead that suit has already abated due to non substitution in the suit, hence the petitioner is estopped to plead abatement in the trial Court and the plea is barred by principle of resjudicata and otherwise also in law once the substitution has been allowed at the appellate or revisional stage it enures for the benefit of all stages of the suit thereafter. The proceedings in writ petition under Article 227 of the Constitution have been held to be akin to appellate or revisional jurisdiction by the apex Court in the case of Surya Devi Rai Vs. Ram Chandar Rai 2003(6) SCC-675, hence the application (paper no.62/C) dated 4.9.263 (Annexure-1 to the writ petition) was merely a formal application to record the already allowed substitution of defendants' heirs.

The attention of the Court has been drawn towards the order dated 16.10.2003 by which the trial Court rejected the application 62/C which is as under:

^^16-10-03

fuLrkj.k izkFkZuk i= 62x

;g izkFkZuk i= oknh dh vksj ls izfroknh dh e`R;q ij mlds mRrjkf/kdkfj;ksa dks i{kdkj cuk;s tkus gsrq vkns'k 22 fu;e 4 ,oa vkns'k 6 fu;e 17 nhokuh izfdz;k lafgrk ds vUrxZr izLrqr fd;k x;k gSA izkFkhZ dk dFku gS fd izfroknh jes'k nRr ikfyoky dh e`R;q fnukad 18-11-01 dks fjV ;kfpdk la[;k&6069@93 ds yfEcr jgus ds nkSjku gks x;k gSA mijksDr ;kfpdk fnukad 26-8-03 dks fujLr dh tk pqdh gSA e`R;q ds le; ij izfroknh ds dsoy nks mRrjkf/kdkjh fnus'k pUnz ,oa dqlqe yrk izfroknh ds lkFk jg jgs Fks rFkk mldh fookfgr iqf=;ka vius&vius ifr;ksa ds lkFk jg jgh FkhA pwafd fjV ;kfpdk esa izfroknh ds mRrjkf/kdkjh fu;qDr gks pqds gSa] ,slh fLFkfr esa bl okn esa mRrjkf/kdkjh fu;qDr djuk dsoy vkSipkfjdrk ek= gS rFkk ml ifjlhek vf/kfu;e ykxw ugha gksrk gSA vr% okn i=esa bl laca/k esa la'kks/ku djus dh vuqefr nh tk;sA

izLrkfor izfroknh la[;k& 1@1 dh vksj ls vkifRr izLrqr dj izkFkZuk i= dk fojks/k fd;k x;k gSA

izLrkfor izfroknh la ;k 1@2 dks dqlqe yrk dh vksj ls rkehy ds ckotwn dksbZ mifLFkr ugha gqvkA

izLrkfor izfroknh la[;k 1@1 dks vkifRr gS fd jes'k nRr ikyhoky dh e`R;q fnukad 18-11-01 dks gksus ds mijkaroknh }kjk fu;r vof/k ds vUnj mlds mRrjkf/kdkjh fu;qDr ugha djk;s x;sA bl izdkj oknh dk okn ,d ek= izfroknh dh e`R;q gks tkus ds dkj.k mi'kfer gks pqdk gS rFkk oknh }kjk e`rd izfroknh ds vU; mRrjkf/kdkfj;ksa dks i{kdkj ugha cuk;k x;k gSA vr% izkFkZuk i= fujLr fd;s tkus ;ksX; gSA

lquk ,oa i=koyh dk voyksdu fd;kA

Lohd`r :i ls jes'k nRr dh e`R;q fnukad 18-11-01 dks gks pqdh gS rFkk izkFkZuk i= 62x] tks fd fnukad 8-9-2003 dks izLrqr fd;k x;k gS ls iwoZ oknh dh vksj ls e`rd ds mRrjkf/kdkjh fu;qDr djk;s tkus gsrq dksbZ izkFkZuk i= izLrqr ugha fd;k x;kA oknh ds fo}ku vf/koDrk dk rdZ gS fd pwafd fjV ;kfpdk esa izfroknh ds mRrjkf/kdkjhx.k fu;qDr fd;s tk pqds gSaA vr% bl okn esa mRrjkf/kdkjh fu;qDr djuk vkSipkfjdrk ek= gSA bl laca/k esa oknh ds fo}ku vf/koDrk us lwjt eanj cuke nso feJk ,-vkbZ-vkj- 1984 iVuk 378 ,oa Jherh Kkuokjh cuke t;flag] ,-vkbZ-vkj- 1986 bykgkckn 367 esa fu/kkZfjr O;oLFkkvksa ij cy fn;k gS] fdUrq mDr O;oLFkkvksa esa dze'k% okn fujLr gksus ij iquZLFkkiuk gsrq izkFkZuk i= esa mRrjkf/kdkjh fu;qDr fd;s tk pqds gSa rFkk ekuuh; mPp U;k;ky; }kjk fu/kkZfjr O;oLFkk esa ,d i{kh; fu.kZ; ds mijkar izfroknh dh dh e`r;q gqbZ Fkh rFkk iquZLFkkiuk izkFkZuk i=fof/kd mRrjkf/kdkjh;ksa dh vksj ls izLrqr fd;k x;k FkkA blds vfrfjDr oknh ds fo}ku vf/koDrk us ikyrw nRrk cuke ,l-,e-fuosfnrk ,-vkbZ-vkj- 1990 dydRrk 262 esa fu/kkZjfr O;oLFkk ij Hkh cy fn;k gS rFkk ;g rdZ izLrqr fd;k gS fd pqafd fjV ;kfpdk ewy okn ls gh mRiUu gqbZ Fkh rFkk ewy okn ds laca/k esa ekuuh; mPp U;k;ky; dks Ik;Zos{kd ds :i esa vf/kdkj izkIr gSA vr% ;kfpdk dks okn ds fujarjrk esa gh ekuk tk;sxk rFkk ,slh fLFkfr esa izkFkZuk i= vkSipkfjd ek= gSA blds foijhr izfroknh ds fo}ku vf/koDrk us m-iz- jkT; cuke Mk- fot; vkuUn egkjkt ] ,-vkbZ-vkj- 1963 lqizhe dksVZ 946 esa fu/kkZfjr O;oLFkk ij cy fn;k gS ftlesa ;g fu/kkZfjr fd;k x;k gS fd lafo/kku ds vuqPNsn 226 ds vUrxZr fjV tkjh djus dk {ks=kf/kdkj vihyh; ,oa iquZfujh{k.k {ks=kf/kdkj ls fHkUu gSA vr% vuqPNsn 226 ds vUrxZr izLrqr ;kfpdk dks okn dh fujarfjrk esa gksuk ugha dgk tk ldrkA bl izdkj mijksDr O;oLFkk ds vk/kkj ij eSa bl fu"d"kZ ij igqaprk gwa fd izLrqr okn ds laca/k esa tks ;kfpdk ekuuh; mPp U;k;ky;] bykgkckn ds le{k izLrqr dh xbZ Fkh] og bl okn dh fujarjrk ugh gS rFkk pwwafd oknh us fu/kkZfjr vof/k ds vUnj e`rd izfroknh ds mRrjkf/kdkjh fu;qDr ugha djk;s gSaA vr% izfroknh ds fo:) okn mi'kfer gks pqdk gSA ,slh fLFkfr esa izkFkZuk i= 62x fujLr fd;s tkus ;ksX; gSA

                    vkns'k

izkFkZuk i= 62 x rn~uqlkj fujLr fd;k tkrk gSa i=koyh vfxze vkns'k gsrq fnukad 29-10-2003 dks izLrqr gksA

                       y?kqokn U;k;k/kh'k**  

         

It is stated that hence the only question decided was that suit has abated notwithstanding the substitution in the writ petition and the application was not within time.

It is submitted that in this situation there were two options available before the landlady, firstly to challenge the order dated 16.10.2003 to pursue the plea before superior Court that writ was the continuation of suit and substitution having been made there the suit will not abate or secondly accepting the view of trial Court that suit has abated move an application to set aside the abatement condoning the delay and that the landlady challenged the order by filing revision and review where the only point to be decided was whether the suit has abated despite the substitution having been allowed in writ petition, hence by withdrawal of her revision and review at the most the landlady could be said to be precluded from challenging and rather can be held to have accepted, the verdict that suit stood abated despite the substitution having been made in the writ petition and to that extent order of the trial Court became final.

It is further submitted that the said withdrawal will not take away the right of the landlady to seek her remedy by seeking fresh substitution after condoning the delay and setting aside of abatement, hence the fresh application dated 4.11.2003 was rightly moved praying to set aside the order dated 16.10.2003 whereby the substitution application 62/C was rejected so as to revive the said application 62/C and to condone the delay in moving said 62/C and allow the said substitution.  He also submits that the trial Court rejected the application by order dated 31.7.2004 holding that since the substitution application has been rejected on 16.10.2003 hence the application under Order 22 Rule 9 is not maintainable.

It is further submitted that the main ground argued by the petitioner is that the order dated 16.10.2003 having become final due to withdrawal of revision and review filed against it under Order 22 rule 9 of the C.P.C. was not maintainable and dealing with similar situation where the earlier substitution application was dismissed as not maintainable due to the fact that suit already stood abated and fresh application for setting aside the abatement were dismissed as not maintainable due to earlier rejection.

It is further urged by the counsel for the respondents that by withdrawal of the revision and review the only order that could have become final was that suit had stood abated and substitution in writ petition will not save it, hence by the impugned order when the Court below has rightly condoned the delay and set aside the abatement in the circumstances of the case that matter was lying stayed by an interim order in the pending writ petition and substitution was already sought by the heirs in said writ petition, cannot be said to be suffering from any error of law.

It is lastly submitted that by the impugned order substantial justice has been done between the parties, the conduct of tenant in not paying the costs imposed by this Court in earlier writ petition and raising hyper technical objections just to flout the order of High Court to decide the suit within six months also disentitle him to any equitable jurisdiction. The heavy and exemplary costs are also warranted against him as the suit is pending since the year 1984 in the Court of JSSC, Court of summary jurisdiction.

In rebuttal it is vehemently urged that ratio laid down in para 8 of the judgment rendered in 2004 AIR SCW-4607 Ganeshprasad Badrinarayan Lahoti (D) by L.Rs. Vs. Sanjeevprasad Jamnaprasad Chourasiya and another  and paras 4 and 5 of the judgment reported in AIR 1992 Allahabad page-178 Bishambhar and another Vs. IIIrd Addl. District Judge, Azamgarh and others referred by the counsel for respondent no.1 has no application to the facts and circumstances of this case inasmuch as in the facts of the said cases the application for condonation of delay and setting aside abatement in filing the substitution application was accompanied with

fresh substitution application on the ground of limitation whereas in the facts of the present writ petition after dismissal of the substitution application on 16.10.2003 no substitution application was filed by the plaintiff/respondent no.1 has no applicability in the facts and circumstances of the case, hence the writ petition filed by the petitioner deserves to be allowed and the judgment and order dated 9.3.2005 deserves to be set aside.

After hearing the counsel for the parties I find force in the arguments of the respondents. For proper adjudication of the dispute and substantial justice between the parties, substitution application for bringing the legal heirs and representatives on record should normally be allowed in all circumstances. After the death of Ramesh Paliwal on 18.11.2001 application was moved to bring his legal heirs on record which was rejected by order dated 16.10.2003 on the ground of limitation. The matter regarding property rights in which a hyper technical view was not warranted. The effect of such view would give immense benefit to one party and result in irreparable loss to another without there being any adjudication of dispute. Settlement of dispute by order on merit is always preferred by the Courts and one sided orders in the instant case do not actually decide the dispute on merits between the parties. In my view the order dated 31.7.2004 rejecting the application of respondent no.1 for setting aside the order of abatement and condonation of delay on the ground that earlier application for substitution of legal heirs has been rejected by order dated 16.10.2003 on limitation and there being no substitution of legal heirs, was not maintainable is too technical a view.

It appears as if the Courts below were shutting one door of justice after another to block the dispensation of justice to the respondents. In the circumstance the Revisional Court has rightly allowed Civil Revision No. 46 of 2004 setting aside the orders dated 16.10.2003 and 31.7.2004 by the impugned order dated 9.3.2005 and has not committed any illegality or committed any error apparent on the face of the record as alleged by the petitioner. The order passed by the Revisional Court dated 9.3.2005 aforesaid is not an order reversing the judgment of the trial Court as there was no judgment on facts upon the merits of the case. The orders of the trial Court are merely of rejection of application for substitution of legal heirs and representatives of deceased Ramesh Paliwal and of automatic abatement for non substitution of legal heirs and representatives of the deceased, hence the case of  Santosh Hazari cited by the petitioner is not applicable to the facts and circumstances of this case as  the facts of that case are different from the instant case.  In that case the facts were that the plaintiff-appellant filed a suit for declaration of title and recovery of possession and issuance of permanent preventive injunction restraining the defendant from interfering with the possession of the plaintiff over the suit property. The defendant filed his written statement denying the allegations made in the plaint. The trial Court, on an evaluation of oral and documentary evidence adduced by the parties decreed the suit. The defendant preferred an appeal against the order of the trial Court. The appeal was allowed and the suit was directed to the dismissed. Thereafter the plaintiff preferred a second appeal which was dismissed in limine by the High Court on the ground that no second appeal could be filed without framing substantial question of law, hence the ratio laid down therein is not applicable to the instant case.

As regards judgment rendered in Kishore Kumar Khaitan (supra) relied upon by the petitioner, I have already held above that there is no error apparent on face of record committed by the Revisional Court, hence this judgment is also of no help to the petitioner.

In so far as contention of the learned counsel for the petitioner on the basis of State of Uttar Pradesh and others Vs. Dr. Vijay Anand Maharaj, AIR 1963 SC-946 and paras 4 and 5 of the judgment rendered in AIR 1992 Allahabad page-178 Bishambhar and another Vs. IIIrd Addl. District Judge, Azamgarh and others  is concerned, suffice it to say that under Article 226 of the Constitution the High Court exercises extraordinary powers to correct an arbitrary order or a judicial wrong in the facts and circumstances of each case. The proceedings under Article 226 are also akin to appellate jurisdiction in this context as has been held by the Apex Court in Surya Devi Rai (supra).

Similarly the cases relied upon by the counsel for the petitioner in rebuttal i.e.   2004 AIR SCW-4607 Ganeshprasad Badrinarayan Lahoti (D) by L.Rs. Vs. Sanjeevprasad Jamnaprasad Chourasiya and another  and paras 4 and 5 of the judgment reported in AIR 1992 Allahabad page-178 Bishambhar and another Vs. IIIrd Addl. District Judge, Azamgarh and others  are clearly distinguishable on facts and law as admittedly in these cases the application for condonation of delay and setting aside abatement in filing substitution application was accompanied by a fresh substitution application, whereas in the instant case it is not so, but the Revisional Court after considering the facts and circumstances of the case has allowed the Civil Revision No. 46 of 2004 setting aside the orders dated 16.10.2003 and 31.7.2004 impugned in the aforesaid revision.

For all the reasons stated above, the writ petition is dismissed. Costs on parties.

Since suit no. 286 of 1984, Smt. Pushpa Paliwal versus Sri Ramesh Dutt Paliwal is old one, the trial Court is directed to decide it within a period of 9 months from the date of production of a certified copy of this order.

Dated 6.10.2006

CPP/-


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