Gauri Shanker vs Commissioner and Others

Amreshwar Pratap Sahi, J.—This petition questions the correctness of the order passed by the Trial Court, namely, the Sub Divisional Officer-respondent No. 14 and the affirmation thereof by the learned Commissioner, Gorakhpur-respondent No. 1, whereby, in a suit u/s 229-B of the U.P.Z.A. & L.R. Act, 1950, the delay condonation application in support of the restoration application filed by Late Kishun Dev, the defendant in the suit, now represented by the respondents No. 2 to 5, has been allowed and upheld. The facts giving rise to the present controversy are that the petitioner is the son of one Chhedi who is a co-plaintiff along with Indrasan and Balkhila in a suit u/s 229-B of the 1950 Act. The defendant No. 1 in the suit was Kishun Dev, now represented by the contesting respondents No. 2 to 5, and the Gaon Sabha and the State were the other defendants. The suit was preferred claiming tenancy rights on the disputed holding on account of long standing possession and it appears that the said suit was dismissed on 29.9.1994.

The plaintiffs in the suit filed a review application which was allowed on 14.11.1995 and the suit was decreed, reciting that the plaintiffs were of the weak and poor class who cannot bear the expenses of getting the sale deed executed in respect of the land in dispute, and that the defendant had accepted handing over possession of the land to the plaintiffs. The suit is alleged to have been decreed on the basis of a compromise.

The defendant in the suit Kishun Dev, white he was alive, is stated to have filed the restoration application on 27.12.2007 after twelve years alleging that no compromise had taken place so as to allow the review application, and that the proceedings all appeared to be fabricated as the signatures of the Presiding Officer are doubtful and the order sheet and the dates on the review application are all overwritten. It was stated therein that the review was not even maintainable and there was no occasion to compromise the matter as according to the relationship of the parties and the pedigree table disclosed in paragraph 10 of the review application, the defendant also had his share to the extent of half of the holding. The compromise was described as forged and the service of notice on the defendant was also alleged as manipulated and fake.

The petitioner''s father Chhedi along with the other plaintiffs and their successors filed an objection to the said restoration application dated 30.1.2008, copy whereof is Annexure 4 to the writ petition. The restoration application was allowed by a detailed order dated 22.10.2008 and the suit was restored after extending the benefit of section 5 of the Limitation Act.

The petitioner along with the other plaintiffs filed a revision questioning the correctness of the said order which was allowed on 25.9.2010 and the same was remanded back to the Trial Court to pass a fresh order for which three issues were framed by the Revisional Court.

The Trial Court vide order dated 23.6.2011 again extended the benefit of section 5 of the Limitation Act and the delay was condoned with a further direction that the restoration application shall be heard on merits.

The petitioner contends that the said order is cryptic without recording any specific finding as to why the delay deserves to be condoned, and as such a revision was filed questioning the correctness of the said order that has been dismissed holding that the defendant has been rightly extended the benefit of section 5 of the Indian Limitation Act which order does not require any interference, and further the rights of the plaintiffs are nowhere prejudiced as the restoration application is still pending.

Sri Tripathi, learned Counsel for the petitioner, submits that the restoration has been allowed without adhering to the principles of the sufficiency of cause and without their being any finding on the issue of inordinate delay in the filing of the restoration application. Sri Tripathi further submits that when the matter was remitted vide order dated 25.9.2010 there was a specific direction to consider the three issues relating to the allegation of the forged signatures on the compromise, the endorsement on the restoration application and the order directing the application to be kept on file which is of a prior date of the application itself. Sri Tripathi submits that the Trial Court has completely overlooked all the three directions and the Revisional Court has also overlooked the same.

Having heard Sri Tripathi, it appears that the suit had been dismissed, but the review application was allowed and the suit was decreed vide order dated 14.11.1995, There is nothing on record to indicate that any issues were framed or the procedure prescribed for deciding a suit issue wise after recording findings on each issue was ever passed. The suit was based on long standing possession, but the review application was allowed on 14.11.1995 recording that since the plaintiffs are poor persons having negligible financial resources, they are unable to get a sale deed executed in respect of the land and, therefore, the suit is being decreed. The aforesaid decree, therefore, clearly indicates that transfer of immovable property was being effected under such a decree after recording that the plaintiffs had no resources.

The plaintiffs in their objections to the restoration application referred to a compromise dated 19.9.1992. Even though the allegation of compromise has been noted in the order dated 14.11.1995 yet the compromise has been noted in the shape of an admission of the defendant of having surrendered the land to the plaintiffs and having handed over possession of the same.

The restoration application has been filed by Kishun Dev himself, who was the defendant in the suit, alleging fraud and describing the said proceedings as forged. The Revisional Court while remanding the matter back to the Trial Court on 25.9.2010, therefore, had taken notice of these aspects and then remitted the matter to examine the status of the alleged compromise in the suit. Sri Tripathi for the petitioner has heavily relied upon the said remand order. The Trial Court is yet to deal with the matter on evidence to consider the status of the said compromise.

In my opinion, the said direction of the Revisional Court dated 25.9.2010 touches upon the merits of the restoration application and since the said order dated 25.9.2010 has become final, the issue relating to the veracity of the compromise has to be gone into at the time of deciding the restoration application itself. Thus, in effect the direction of the Additional Commissioner is also to examine the aforesaid aspect to which the petitioner has acquiesced. The restoration application can only be heard on this issue if the delay is condoned and in the aforesaid background the Trial Court was justified in condoning the delay in order to comply with the remand order dated 25.9.2010. Consequently, in my opinion, in view of the aforesaid directions contained in the order dated 25.9.2010 the Trial Court has rightly proceeded to condone the delay for considering the merits of the restoration application. The restoration matter therefore has to be decided accordingly as the petitioner cannot escape from the binding effect of the remand order.

Learned Counsel then submits that the restoration application could not have been proceeded with by the Trial Court without following the direction given by the Revisional Court.

Having perused the revisional order I am satisfied that the Revisional Court has also taken the correct view of directing the restoration application to be disposed of on merits. A supplementary affidavit has been filed bringing on record the restoration application dated 18.6.2007 and a perusal thereof indicates a plea raised for condoning the delay. The delay, therefore, deserved to be condoned and in the circumstances keeping in view the interest of justice I am not inclined to exercise my discretion on the technical grounds raised by Sri Tripathi in support of the writ petition. The judgment relied upon by the learned Counsel for the petitioner in the case of Smt. Dayawati and Others Vs. D.D.C. Baghpat and Others, therefore, will have no application on the facts of the present case as noted hereinabove for disposal of the restoration application. Consequently, the writ petition is dismissed with a direction to the Trial Court to dispose of the restoration application expeditiously preferably within a period of six months after providing opportunity to the parties to lead evidence as per the remand order dated 25.9.2010.