Batuk Prasad and Others vs Buddhu and Others

D. S. Sinha, J.

Heard Shri S. K. Chaubey, learned counsel appearing for Shri Lalmani Tewari, son of Shri Anant Prasad, the deceased petitioner No. 2. at great length and in detail. Shir A. S. Kapoor, learned counsel representing the respondents, has also been heard. .

The circumstances of the case render it imperative to go into details of the undisputed sequence of events which are as under :

Cause of action for the writ petition wherein this application has been moved arose out of the proceedings under Section 9 of the U.P. Consolidation of Holdings Act, 1953. The writ petition was instituted in this court in July, 1985 through Shri D.V. Jaiswal, Advocate. Alongwith Shri D.V Jaiswal, Shri K. M. Dayal, learned Senior Advocate of this court also appeared in the petition. The petition was admitted on 15lh July, 1985. After a lapse of the long period of about eight years, an application dated 14th October, 1993 was moved on behalf of the petitioners suggesting the dismissal of the petition as abated in view of the fact that the village wherein the property in dispute was situated had been denotified bringing an end to the consolidation proceedings.

The Application dated 14101993 was up for consideration before the court on 12th April, 1994. After hearing Shri Ram Singh, holding brief of Shri Atul Dayal, another counsel of the petitioners, the petition was dismissed and the interim order was directed to stand discharged in view of the application dated 14th October, 1993.

Thereafter, an application dated 4th May, 1994 purporting to be a review application under Order XLVII read with Section 151 of the Code of Civil procedure, 1908 was moved through another counsel Shri V. B. L. Srivastava, this application was not supported by any affidavit, though under Rules of the Court, 1952, it was required to be so supported. However, the application remained pending for one reason or the other, recorded on the ordersheet.

On 19th April, 1995 Shri R. M. Pandey, brief holder of Shri V. B. L. Srivastava, appeared and obtained a week''s time to file requisite affidavit in support of the review application.

On 4th May, 1995, the office submitted a report that no affidavit was filed for which the time was granted by the Court on 19th April, 1995.

Then, review application came up for consideration on 8th September, 1995, and was taken up on the revision of the list. But, none of the several counsels appearing in the case turned up to prosecute the application or to point out why the affidavit in terms of the order of the court dated 19th April, 1995 was not filed or to make a prayer for further time for the purpose. Left to no choice, the court dismissed the review application on two counts, namely, (a) want of prosecution and (b) noncompliance of the order of the Court dated 19th April, 1995.

The surviving petitioners and the heirs and legal representatives of some of the deceasedpetitioners accepted the order of dismissal of the review application.

However, Shri Lalmani Tewari, son of the deceasedpetitioner No. 2, on his own behalf, though he was not a party to the petition, filed the application dated 21st/23rd September, 1995 praying for a recall of the order dated 8th September, 1995 on the ground that on 8th September, 1995 "due to clerical mistake it was not marked by the counsel for the petitioner and the same was taken up by the Hon''ble Court concerned at 1030 A.M. and it was dismissed in default by holding that the order passed by this Hon''ble Court for filing affidavit with regard to review application has not been complied with". (Emphasis added by Court). This ground is to be found in paragraph 3 of the affidavit of Sri Lalmani Tewari filed in support of the application.

Now, the court is called upon to adjudicate as to whether there is sufficient ground for recalling the order dated 8th September, 1995. Neither the application nor the affidavit filed in support thereof identifies "due to clerical mistake" of which "counsel for the petitioner", amongst many, the case" was not marked".

(Emphasis supplied by Court).

The record shows that as many as six counsels, namely, Shri K. M. Dayal, Senior Advocate, S/Shri D.V. Jaiswal, Atul Dayal, VB.L. Srivastava, Sudhakar Uppadhyay and S. K. Chaubey; and two brief holders, namely, S/Shri Ram Singh and R. M. Pandey have been appearing for the petitioners.

On 17th January, 1996 Shri S.K.. Chaubey, learned counsel appearing for Shri Lalmani Tewari, prayed for and was granted two weeks'' time for filing affidavits of S/Shri Sudhakar Uppadhaya, D.V. Jaisawal, Atul Dayal, V. B. L. Srivastava and K.M. Dayal, Senior Advocate, as to why these Advocates did not attend the case on 8th September, 1995 when it was taken up for consideration on revision of the list. Indisputably, no such affidavit has been filed though a supplementary affidavit of Shri Lalmani Tewari has been filed attempting to give some explanation. But, it is to be remembered that the filing of the affidavit by Shri Lalmani Tewari can by no stretch of imagination be taken to be compliance of the order of the court dated 17th January, 1995, passed on the request of Shri S.K. Chaubey, learned counsel of Shri Lalmani Tewan, granting time for filing affidavits of the learned counsel mentioned in the order. Otherwise also, the explanation furnished in the affidavit, in the opinion of the court, is not at all satisfactory and cannot be assigned a status higher than an after thought. Therefore, the ground for default in prosecution of the review application on 891995, being insufficient, is untenable. It is, therefore, rejected.

So far as the explanation regarding failure of the filing of the affidavit in terms of the order of the court dated 19th April, 1995 resulting in noncompliance of the said order given in paragraph 4 of the affidavit of Shri Lalmani Tewari, filed in support of the application is concerned, suffice it to say that on the showing of the deponent himself the affidavit was not filed, though it is asserted that it had been prepared and sworn on 5th May, 1995. A flimsy reason that the affidavit had "to be produced before this court at the time of hearing on review application" is assigned. (Emphasised by court). It may be recalled that the order dated 19th April, 1995 purported to grant a week''s time to file affidavit meaning thereby that the affidavit could be filed in the registry by 26th April, 1995. There was no reason to wait for filing the affidavit till the time of hearing of the review application. Thus, the explanation for noncompliance of the order dated 19th April, 1996 regarding filing the affidavit within the stipulated time falls short of sufficiency.

Thus, on the facts and circumstances of the case noticed above, the court is clearly of the opinion that instant application is frivolous and cannot succeed. It is, therefore, rejected with costs, quantified at Rs. 2,000. The petitioner is directed to pay the costs to Shri A.S. Kapoor, learned counsel for the respondents, within a period of two months to be computed from today.