Allowed

Prem Shanker Giri and Others v. D.D.C. Ballia and Others

Allahabad HC26 Apr 2018WRIB/15940/1999

Case brief

AI extract

What is this about?

A compromise decree affecting minors' Bhumidhari rights was held voidable, and their recall application and consolidation objections were held timely. The court allowed both petitions, quashed the challenged revenue and consolidation orders, restored the decree's recall, and remanded the objections for fresh decision within six months.

What did the court decide?

Challenged orders quashed; decree-recall order restored; consolidation objections remanded for fresh decision within six months of filing a certified copy.

Prem Shanker Giri and Others Vs D.D.C. Ballia and Others — Property and Title | Allahabad HC (2018)

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Court No. - 11

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Case :- WRIT - B No. - 15940 of 1999

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Petitioner :- Prem Shanker Giri & Others Respondent :- D.D.C. Ballia & Others Counsel for Petitio ner :- K.N.Rai Counsel for Respondent :- C.S.C.,C.K.Rai,Sankatha Rai

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Hon'ble Salil Kumar Rai,J.

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(C.M. Application Nos. 408333 and 408335 of 2014)

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The delay in filing the substitution application has been explained in the affidavit.

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The explanation given in the affidavit is found to be sufficient.

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The delay in filing the substitution application is condoned and the delay condonation application is allowed.

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Substitution application is also allowed.

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Office is also directed to carry out appropriate substitution in relation to respondent nos. 4 as detailed in prayer clause of the application.

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Order Date :- 26.4.2018 IB

A.F.R

Court No. - 11

Case :- WRIT - B No. - 15940 of 1999

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Petitioner :- Prem Shanker Giri & Others Respondent :- D.D.C. Ballia & Others Counsel for Petitioner :- K.N.Rai Counsel for Respondent :- C.S.C.,C.K.Rai,Sankatha Rai

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with

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Case :- WRIT - B No. - 8100 of 2001

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Petitioner :- Hari Shankar Giri And Others Respondent :- The Board Of Revenue U.P. At Alld. And Others Counsel for Petitioner :- K.N.Rai Counsel for Respondent :- C.S.C.,Sankatha Rai

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Hon'ble Salil Kumar Rai,J.

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Supplementary counter affidavit filed today, is taken on record.

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Heard Shri K.N.Rai, counsel for the petitioners in both the writ petitions and Shri Pradeep Kumar Rai, counsel for respondent nos. 3 & 4 and the heirs of respondent no. 4 in the said writ petitions.

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With the consent of the counsel for the parties, both the writ petitions were connected by order dated 16.4.2018 passed by this Court in Writ Petition No.15940 of 1999 and have been heard together and are being decided by a common judgment as the parties are same in both the cases and the property as well as the dispute involved in both the writ petitions are also similar.

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The dispute between the parties relate to Plot Nos.75, 76 & 77 (total area 3.92 acres) situated in

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Village Neelkanthpur District Ballia (hereinafter referred to as, 'disputed plots'). It transpires that one Guddar Giri i.e the father of the petitioners was the recorded tenure holder of the disputed plots. Guddar Giri died in 1977. It is an admitted case of the parties that petitioners were minor at the time of the death of Guddar Giri. It also transpires from the records that immediately after the death of Guddar Giri, a suit numbered as Case No.276, under section 229-B of the U.P Zamindari Abolition & Land Reforms Act, 1950 ( hereinafter referred to as ‘Act, 1950') was instituted in the Court of Additional Sub Divisional Magistrate, District Ballia by respondent nos. 3 & 4 against the petitioners praying for a decree declaring that they were Bhumidar of the disputed plots. The claim of respondents was based on their alleged possession over the disputed plots. In Case No.276, the petitioners were impleaded as defendants through their mother, Smt. Saraswati Devi. On 11.7.1977, a compromise application signed by respondent nos. 3 & 4 and purporting to contain the thumb impression of the mother of the petitioners, was filed in Case no.276. The application recorded the admission of the mother of the defendants /petitioners admitting the possession and claim of Bhumidhari rights by respondent nos. 3 & 4 over the disputed plots. It also transpires from the record that on the same date i.e 11.7.1977, an application was also filed by Smt. Saraswati Devi for permission to file a compromise on behalf of the minors. It also transpires that the thumb impression of Smt.Saraswati Devi and signatures of respondent nos. 3 & 4 on the compromise application were identified by their counsel. Subsequently, by order dated 22.7.1977,

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the trial court accepted the compromise and decreed Case No. 276 in terms of the compromise. Consequently, respondent nos.3 & 4 were recorded as the tenure holders of the disputed plots in the revenue records relating to the same. 5. On 6.6.1995, the petitioners filed an application under Order 9 Rule 13 read with Section 151 of the Code of Civil Procedure 1908 (hereinafter referred to as 'C.P.C.') along with an application under section 5 of the Limitation Act 1963 (hereinafter referred to as Act, 1963) before the Additional Collector, District Ballia praying that the judgment and decree dated 22.7.1977 be recalled and set aside. It was stated in the application that the mother of the petitioners had not executed any Vakalatnama in favour of any counsel and had also not filed any application in Case No.276. It was also stated in the application that the mother of the petitioners had not put her thumb impression on the compromise application and had never admitted the claim of the respondents over the disputed plots. It was furter stated by the petitioners that they as well as their mother had no knowledge about the proceeding in Case No.276 which was held ex parte against them and no notice was served on them in the case. It was alleged that the compromise application dated 11.7.1977 was filed through an imposter and not by the mother of the petitioners and the mother of the petitioners had not obtained any permission from the concerned Court for entering into any compromise on behalf of the petitioners. It was alleged in the application that the permission to enter into compromise on behalf of the petitioners was obtained by some other woman impersonating as mother of the

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petitioners. In short, the allegation of the petitioners was that proceedings in Case No.276 and the decree dated 22.7.1977 were vitiated by fraud practised by respondent nos. 3 and 4 as the petitioners were not represented in the proceedings by their mother but by some other person impersonating as their mother. It was prayed that for the aforesaid reasons, the decree dated 22.7.1977 was liable to be set aside. 6. On the recall application filed by the petitioners, Case No. 251 was registered in the Court of Deputy District Magistrate, Ballia. The recall application was allowed by the Trial Court vide its order dated 29.7.1995. In the meantime, notification under Section 4 of Uttar Pradesh Consolidtion of Holdings Act, 1953 (hereinafter referred to as 'Act, 1953') was issued on 27.10.1990 and the village was brought under consolidation operations. Therefore, by order dated 1.8.1995, proceedings in Case No.276 which were restored as a result of order dated 29.7.1995 were declared as abated under Section 5 of Act, 1953. However, the respondent nos.3 & 4 filed an application dated 16.9.1995 before the Deputy District Magistrate for recall of the order dated 29.7.1995 which was allowed by the Deputy District Magistrate vide his order dated 21.11.1995 and order dated 29.7.1995 was recalled and consequently the recall application dated 6.6.1995 filed by the petitioners stood revived. After the order dated 21.11.1995 the application dated 16.9.1995 had served its purpose and no further orders were required on it. Similarly, the order dated 1.8.1995 passed by the Deputy District Magistrate abating the proceedings in Case No.276 was a consequence of the order dated 29.7.1995 setting aside the decree dated

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22.7.1977 and restoring the proceedings in Case No.276. After the order dated 21.11.1995 whereby the order dated 29.7.1995 was recalled, the order dated 1.8.1995 abating the proceedings in Case No.276 automatically stood cancelled and set aside and no separate orders recalling the order dated 1.8.1995 were required. However, the respondent nos. 3 & 4 also filed an application dated 29.11.1995 for recall of order dated 1.8.1995 and the said application was numbered as Application No.193/96. All the aforesaid applications, i.e., application dated 6.6.1995 filed by the petitioners for recalling the decree dated 22.7.1977 and applications dated 16.9.1995 and 29.11.1995 filed by respondent nos.3 and 4 were jointly heard by the District Magistrate, Ballia in Case No. 251 and the Deputy District Magistrate, Ballia by a common order dated 31.1.1997 allowed Case no.251, i.e the case registered on the recall application filed by the petitioners, and set aside the decree dated 22.7.1977 passed in Case No.276 and restored the aforesaid case to its original file. Through his order dated 31.1.1997, the Deputy District Magistrate also dismissed Application No.193/96 and declared the proceedings in Case No.276 as having abated in view of the fact that consolidation proceedings under the Act 1953 were in operation in the Village. Against the orders dated 31.1.1997 and 1.8.1995, the respondent nos. 3 & 4 filed Revision Nos. 203-B, 204-B & 205-B of 1997 under section 333 of the Act 1950. The aforesaid Revisions were decided by the Additional Commissioner, Azamgarh Division, Azamgarh who by a common order dated 22.6.1998 recommended to the Board of Revenue that the orders dated 31.1.1997 and 1.8.1995

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passed by the Deputy District Magistrate, Ballia be set aside and the Deputy District Magistrate be directed to pass fresh orders on the different applications filed by the parties as in view of the Additional Commissioner, the Deputy District Magistrate had not properly considered the delay on the part of the petitioners in filing the recall application and the notice of the application filed by the petitioners was not served on the respondents in accordance with law and also because the Deputy District Magistrate had not, vide his order dated 31.1.1997 disposed of the application filed by the petitioners.

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The Board of Revenue vide its judgment and order dated 23.11.2000 passed in Reference Nos. 12-14 of 1997-98 accepted the recommendations of the Additional Commissioner and set aside the orders dated 31.1.1997 and 1.8.1995 passed by the Deputy District Magistrate and remanded back the matter to the Deputy District Magistrate to pass fresh orders in the case. The order dated 23.11.2000 was passed by the Board on the ground that notice of the recall application filed by the petitioners was not properly served on respondent nos. 3 and 4 and no orders had been passed by the Deputy District Magistrate on the recall application filed by the petitioners which was revived after the recall application filed by respondent nos. 3 and 4 was allowed by Deputy District Magistrate vide his order dated 21.11.1995. The reference order dated 22.6.1998 passed by the Additional Commissioner and the order dated 23.11.2000 passed by the Board of Revenue have been challenged in Writ Petition no. 8100 of 2001.

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In the meantime, while proceedings were

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pending before the Deputy District Magistrate, Ballia, the petitioners on 6.6.1995, also filed their objections under section 9-A of the Act, 1953 before the Consolidation Officer, District Ballia praying that the name of respondent nos. 3 & 4 entered in the revenue records by virtue of decree dated 22.7.1997 be deleted and petitioners be recorded as Bhumidars of the disputed plots. The objections of the petitioners as well as the prayer to condone the delay in filing the objections were dismissed by the Consolidation Officer, Sadar, District: Ballia vide his order dated 12.11.1998 on the ground that the objections were filed at a highly belated stage and the delay in filing the same was not fit to be condoned. The order dated 12.11.1998 passed the Consolidation Officer, Sadar was challenged by the petitioners under section 48 of the Act, 1953 before the Deputy Director of Consolidation, Ballia through Revision No.1748 which was dismissed by the Deputy Director of Consolidation vide his order dated 15.2.1999. The orders dated 12.11.1998 passed by the Consolidation Officer and 15.2.1999 passed by the Deputy Director of Consolidation have been challenged by the petitioners in Writ Petition No.15940 of 1999. 9. Sri K.N.Rai, the counsel for the petitioners argued that the petitioners or their mother were not served any notice in Case no. 276 and the petitioners were not represented by any guardian in the case. The mother of the petitioners had not signed any Vakalatnama in favour of any counsel in Case no. 276, had never participated in proceedings in Case no. 276 and the proceedings in the case were held with some other person impersonating as mother of the petitioners. It

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was argued by the counsel for the petitioners that the mother of the petitioners had not put her thumb impression either on the alleged compromise application or on any other document purporting to have been filed by her. Admittedly, the petitioners were minor when Case no. 276 was filed by respondent nos. 3 and 4 and on 22.7.1977, i.e., when Case no. 276 was decreed in terms of alleged compromise. The decree was passed and proceedings were held in Case no. 276 without appointing a guardian for the petitioners. It was argued that by virtue of Section 341 of Act 1950, C.P.C. was applicable to proceedings under Act 1950 and as the provisions of Order 32 Rule 3 C.P.C. are mandatory, therefore any decree passed against a minor without appointing his guardian would be void and thus the decree dated 22.7.1977 was void. In the alternative, it was argued by the counsel for the petitioners that the decree dated 22.7.1977, incorporating the terms of the alleged compromise, was passed without any leave by the court to the mother of the petitioners to enter into any compromise on the behalf of the petitioners and without the court ascertaining whether the compromise was for the benefit of the petitioners and in any case no such leave or satisfaction of the court was on record. It was also argued that as no certificate of the counsel or any affidavit by the mother of the petitioners certifying that the proposed compromise was for the benefit of the minors was filed in the case, the decree dated 22.7.1977 was passed in violation of Order 32 Rule 7(1A). The counsel for the petitioners also argued that from the order dated 22.7.1977 passed by the trial court whereby the trial court had accepted the alleged compromise, it was evident that the trial court had not

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applied its mind to all the relevant aspects and had mechanically passed the order accepting the compromise. It was argued that provisions of Rule 7 are also mandatory and as Case no. 276 was decreed in terms of the alleged compromise without following the procedure prescribed in Rule 7 therefore, the petitioners, who were minor when Case no. 276 was decreed, were entitled to get it set aside under Order 32 Rule 7(2). It was argued by the counsel for the petitioners that it was also evident from the records that the decree dated 22.7.1977 was obtained by committing fraud on the court and thus void and liable to be ignored and no illegality was committed by the Deputy District Magistrate in his order dated 31.1.1997 recalling the decree and the Board of Revenue has erred in law in ignoring the aforesaid aspect of the case while setting aside the order of the Deputy District Magistrate. It was argued that for the same reasons the impugned orders of the consolidation courts dismissing the objections filed by the petitioners were also contrary to law and therefore the impugned orders passed by the Board of Revenue and the consolidation courts were liable to be set aside. In the alternative, it was argued by the counsel for the petitioners that the alleged compromise and the consequential decree in terms of the compromise were practically a transfer of the disputed plots by the mother of the petitioners to respondent nos. 3 and 4 without any previous permission of the court and therefore, the compromise was contrary to the prescription in Section 8 (2) of the Hindu Minority and Guardianship Act, 1956 (hereinafter in short referred to as Act 1956) and thus under Section 8 (3) read with Section 11 of Act, 1956 the

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transfer and consequently the decree dated 22.7.1977 were invalid and the petitioners, on attaining majority, were entitled to repudiate it. It was further argued by the counsel for the petitioners that the date of birth of Hari Shankar Giri, i.e., petitioner no.2 in Writ Petition No. 15940 of 1999 who is petitioner no.1 in Writ Petition No.8100 of 2001, was 15.7.1974. The said fact would be evident from the High School certificate of Hari Shanker Giri, annexed as Annexure no.5 in Writ Petition No. 8100 of 2001. Prem Shankar Giri, i.e., Petitioner no. 1 in Writ Petition No. 15940 of 1999 who is also Petitioner No. 4 in Writ Petition No. in 8100 of 2001, was born in 1977. Prem Shankar Giri was shown as minor in the objections filed before the consolidation officer and also in the application filed before the Deputy District Magistrate on 6.6.1995. It has been argued by the counsel for the petitioners that, in the light of Sections 6 to 8 of the Act 1963, the application and the objections filed by the petitioners were within time and, therefore, the petitioners were not required to explain the delay in filing the said application and objections. In the alternative it has also been argued that the delay, if any, in filing the application and the objections were satisfactorily explained by the petitioners before the courts below in their applications filed to condone the delay and the delay, if any, in filing the same was liable to be condoned. It was argued that for the said reasons, the Deputy District Magistrate had rightly condoned the delay in filing the application for setting aside the decree dated 22.7.1977 and the impugned orders passed by the Board of Revenue accepting the recommendation of the Additional Commissioner as well as the impugned orders of the

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consolidation courts dismissing the objections filed by the petitioners were contrary to law and liable to be set aside. It was further argued by the counsel for the petitioners that the order dated 31.1.1997 passed by the Deputy District Magistrate was an order allowing the application filed by the petitioners and therefore the reason given by the Board in its impugned order that the Deputy District Magistrate had not passed any orders on the application filed by the petitioners is contrary to the records. Further, the reason given by the Board in its impugned order that notice of the application filed by the petitioners for setting aside the decree 22.7.1977 was not properly served on respondent nos. 3 & 4 was also not sustainable in as much as no objections to that effect were raised by respondent nos. 3 & 4 and in any case the order dated 31.1.1997 was passed by the Deputy District Magistrate after hearing the respondent nos. 3 & 4. It was argued that as respondent nos. 3&4 had appeared before the Deputy District Magistrate to oppose the application filed by the petitioners and had argued against it, therefore, any irregularity in service of notice was irrelevant for a decision of the case and the impugned order of the Board is not only contrary to the records of the case but also vitiated due to consideration of irrelevant factors. It has been argued by the counsel for the petitioners that for all the aforesaid reasons the impugned orders passed by the Additional Commissioner, Board of Revenue and the consolidation courts are illegal and contrary to law and liable to be set aside and the writ petitions are liable to be allowed. In support of his arguments the counsel for the petitioners has relied on the Madhegowda (dead)

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through L.Rs. Vs. Ankegowda (dead) through L.Rs. and others (2002) 1 A.W.C. 13 (SC), Mubarak Vs. Deputy Director Of Consolidation 1975 A.W.C. 467, Amrithamkudumbah Vs. Sarnam Kudumban (1991) 3 SCC 20, Nathumal Vs. Mohd. Nazir and another AIR 1955 Allahabad 584 and Padma Vithoba Chakkayya Vs. Mohd. Multani AIR 1963 SC 70 .

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Rebutting the arguments of the counsel for the petitioners, Sri Pradeep Kumar Rai, the counsel for the respondent nos. 3& 4 has argued that the decree dated 22.7.1977 was passed by the revenue court in Case No. 276 after proper service of notice of the case on all the concerned parties and the decree was passed on a joint application filed by respondent nos. 3 & 4 and the mother of the petitioners, wherein the terms of compromise agreed between the parties were recorded. It has been argued by the counsel for respondent nos. 3 & 4 that on 11.7.1977, the mother of the petitioners had filed an application stating that the parties had entered into a compromise and in the said application the mother of the petitioners also sought leave of the court to file a compromise on behalf of the petitioners. There is a recital in the joint application that the mother of the petitioners had been granted leave to file an application for compromise and a prayer was made in the application that the case be decreed in terms of the compromise. It has been argued by the counsel that from the aforesaid recital it was evident that the mother of the petitioners had been granted leave by the court to enter into a compromise on behalf of the petitioners. In the alternative, it was argued by the counsel for respondent nos. 3&4 that leave to the mother to enter

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into compromise on behalf of the petitioners would be implied in the order dated 22.7.1977 decreeing Case no. 276 and it would also be implied in the aforesaid decree that the court had ascertained whether the compromise was beneficial to the petitioners. It was argued that any omission on the part of the court in not expressly recording the aforesaid facts would be mere irregularities which would not, in themselves, vitiate the decree dated 22.7.1977 and cannot be a reason to recall and set aside the decree. It was further argued by the counsel for the respondents that the mother of the petitioners had executed a vakalatnama in favour of her counsel in Case no. 276 and had also put her thumb impression on the compromise application which was identified by her counsel and therefore the contention of the petitioners that their mother had not participated in the proceedings in the case and had not entered into any compromise on their behalf was also unfounded. It was argued that the order dated 31.1.1997 passed by the Deputy District Magistrate was a non-speaking order and contrary to law and the impugned order passed by the Board of Revenue remanding back the matter to the Deputy District Magistrate was not liable to be interfered by this court as the Deputy District Magistrate would be empowered to decide the application of the petitioners for setting aside the decree in light of the allegations and arguments of the petitioners and after considering the records of the case. It was also argued by the counsel for the respondents that in view of the notification dated 27.10.1990 issued under Section 4 of Act 1953, the proceedings before the Deputy District Magistrate started at the instance of the petitioners was not

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maintainable and therefore, in any case, the order passed by the Deputy District Magistrate was without jurisdiction and it was not a fit case for interference under Article 226 of the Constitution of India. It was further argued by the counsel for the respondents that Act 1956 was not applicable on Bhumidhari properties governed by Act 1950 and therefore the legality or validity of decree dated 22.7.1977 cannot be tested on the touchstone of Sections 8 and 11 of Act 1956. It was also argued by the counsel for respondents that in any case the objections filed by the petitioners before the consolidation officer and the application filed before the revenue court for setting aside the decree dated 22.7.1977 were highly belated and no satisfactory explanation was given by the petitioners for the delay in filing the same. In his order dated 31.1.1997, the Deputy District Magistrate had not considered the delay in filing the application for setting aside the decree dated 22.7.1977 and the opinion of the Additional Commissioner as recorded in his reference dated 22.6.1998 that the matter was liable to be remanded back to the Deputy District Magistrate to properly consider the delay in filing the recall application by the petitioners and the orders passed by the consolidation courts, dismissing the objections of the petitioners on the ground that the objections were highly belated, were according to law and not liable to be interfered by this court under Article 226 of the Constitution of India and the writ petitions are liable to be dismissed. In support of his arguments the counsel for the respondents relied on Smt. Sursati Devi Vs. The Joint Director Of Consolidation and others (1982) 1 RR 122 and Maya Shankar and another Vs.

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Deputy Director of Consolidation and another 1983 All.C.J.557 .

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I have considered the rival submissions of the counsel for the parties and also perused the record. 12. Writ Petition No. 8100 of 2001 has been filed against the order dated 22.6.1998 passed by the Additional Commissioner and order dated 23.11.2000 passed by the Board of Revenue. 13. The facts of the case in Writ Petition No. 8100 of 2001 have been recorded in the earlier part of the judgement and do not require to be stated in detail here. However, the chronology of the events culminating in the order dated 31.1.1997 would be relevant to decide the legality of the order dated 23.11.2000 passed by the Board of Revenue. On 6.6.1995, the petitioners filed their application to recall and set aside aside the decree dated 22.7.1977 passed in Case no. 276 and on the aforesaid application Restoration Case no. 251 was registered before the Deputy District Magistrate. Notification under Section 4 of Act 1953 was issued on 27.10.1990 notifying the village under consolidation operations. The application filed by the petitioners was allowed by the Deputy District Magistrate by his order dated 29.7.1995 and consequently the proceedings in Case no. 276 instituted by respondent nos. 3&4 stood revived. But as the village was notified under consolidation operations vide notification dated 27.10.1990, the Deputy District Magistrate vide his order dated 1.8.1995 abated the proceedings in Case no. 276. The respondent nos. 3 & 4 filed an application dated 16.9.1995 for recall of order dated 29.7.1995 which was allowed by the Deputy District Magistrate vide his order dated 21.11.1995 and

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the order dated 29.7.1995 was recalled. As a consequence of the order dated 21.11.1995, the application dated 6.6.1995 filed by the petitioners stood revived. Evidently, the respondent nos. 3&4 had knowledge of the proceedings instituted by the petitioners for recall of the decree dated 22.7.1977 when the respondents filed their application dated 16.9.1995. Any defect in service of notice on respondent nos. 3 & 4 of the application filed by the petitioners became irrelevant as, after the order dated 21.11.1995, the respondents appeared and participated in the proceedings before the Deputy District Magistrate. Further, after the order dated 21.11.1995 passed by the Deputy District Magistrate, proceedings on the application filed by the petitioners stood revived and clearly, after the order dated 21.11.1995, the proceedings before the Deputy District Magistrate were on the application filed by the petitioners. The arguments of the parties, as recorded by the Deputy District Magistrate in his order dated 31.1.1997, also reveals that the parties had participated in the proceedings conscious of the fact that the merits of the application filed by the petitioners were under consideration before the Deputy District Magistrate. The Deputy District Magistrate, through his order dated 31.1.1997 allowed the application filed by the petitioners. The respondents challenged the order of the Deputy District Magistrate before the Additional Commissioner who vide his order dated 22.6.1998 referred the matter to the Board Of Revenue recommending that the order passed by the Deputy District Magistrate be set aside and the matter be remanded back for a fresh decision. The reasons given

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by the Additional Commissioner in his order dated 22.6.1998 was that service of notice on the respondents of the proceedings instituted on the application dated 6.6.1995, i.e., in Restoration Case no. 251 was not according to law and the Deputy District Magistrate had not passed any orders on the application dated 6.6.1995 filed by the petitioners and further, the Deputy District Magistrate had not properly considered the delay on the part of the petitioners in filing the application dated 6.6.1995. The Board of Revenue vide its impugned order dated 23.11.2000 accepted the reference made by the Additional Commissioner and set aside the order dated 31.1.1997 passed by the Deputy District Magistrate and remanded back the matter to the Deputy District Magistrate to pass fresh orders in the case. The order dated 23.11.2000 was passed by the Board on the ground that notice of the proceedings in Case no. 251 was not served on the respondents in accordance with law and the Deputy District Magistrate had not passed any orders on the application filed by the petitioners which stood revived after the order dated 21.11.1995. A reading of the order dated 23.11.2000 passed by the Board of Revenue reveals a non-application of mind and that the said order has been passed by the Board without considering the relevant records of the case. As recorded earlier, after the order dated 21.11.1995 which was passed on the application dated 16.9.1995 filed by the respondents for recalling the order dated 29.7.1995, the petitioners and the respondents participated in the proceedings conscious of the fact that the merits of the application filed by the petitioners were under consideration before the Deputy District Magistrate and had argued on the

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legality and validity of the decree dated 22.7.1977. The said fact would be evident from the contents of the order dated 31.1.1997 passed by the Deputy District Magistrate. Any irregularity in service of notice was irrelevant and could not have been a cause to set aside the order dated 31.1.1997. Further, a reading of the order dated 31.1.1997 shows that the Deputy District Magistrate, after considering the case of the parties, passed the order specifically allowing Restoration Case No. 251 instituted by the petitioners through their application dated 6.6.1995. Thus, the second reason given by the Board in support of its order dated 23.11.2000 is also not supported by records. 14. In view of the reasons given above, the impugned order dated 23.11.2000 passed by the Board of Revenue is liable to be set aside. However, as the dispute between the parties resulting in the present writ petitions is pending since 1995 and as the counsel for the parties have argued on the legality of the decree dated 22.7.1977 and also on the question of limitation, i.e., whether the application filed by the petitioners for setting aside the decree dated 22.7.1977 and their objections before the consolidation authorities were within time, the court has proceeded to consider the said questions in the light of the arguments of the counsel, the pleadings of the parties and the records of the case which have either been admitted by the parties or which have not been specifically denied by the opposite party.

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In the light of the arguments of the counsel, the issue before this Court relates to the nature and legality of the decree dated 22.7.1977 and whether it was void or voidable as well as the maintainability of the

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proceedings instituted by the petitioners before the revenue and consolidation courts and whether the proceedings instituted by the petitioners were within the time prescribed in the relevant statute.

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By virtue of Section 341 of the Act 1950, provisions of C.P.C. and Act 1963 are applicable to proceedings under the Act 1950. Thus the proceedings in Case no. 276 instituted under Section 229-B of Act 1950 and the application filed by the petitioners for setting aside the decree dated 22.7.1977 passed in Case no. 276 were governed by C.P.C. and the Act 1963.

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Order 32 Rule 3 C.P.C. provides that where, in a suit, a defendant is a minor, the Court shall appoint a proper person to be the guardian for the suit for such minor. Order 32 Rule 3 is reproduced below:-

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Order 32 Rule 3. Guardian for the suit to be appointed by Court for minor defendant

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3. Guardian for the suit to be appointed by Court for minor defendant .— (1) Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor.

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(2) An order for the appointment of a guardian for the suit may be obtained upon application in the name and on behalf of the minor or by the plaintiff.

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(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.

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(4) No order shall be made on any application under this rule except upon notice to any guardian of the minor appointed or declared by an authority

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competent in that behalf, or, where there is no such guardian, [upon notice to the father or where there is no father, to the mother, or where there is no father or mother, to other natural guardian] of the minor, or, where there is [no father, mother or other natural guardian], to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice under this sub-rule.

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(4-A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.

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(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and any proceedings in the execution of a decree.

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The effect of non-compliance of Order 32 Rule 3 has been considered by the Supreme Court as well as this Court and it has been held that any decree against a minor passed without complying with the provisions of Order 32 Rule 3 would be void and a nullity and not binding on the minor. It has been further held by the courts that such a decree can be ignored and the minor was not required to get it set aside.

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The Supreme Court in Ram Chandra Arya Vs. Man Singh and another (AIR 1968 SC 954) , while dealing with a decree against a lunatic passed in violation of Order 32 Rule 15 of C.P.C. held that such a decree was void and a nullity and any sale effected in pursuance of such a decree would also be void and a nullity. It was held by the Supreme court that in such a case the aggrieved person was not required to take recourse to the procedure prescribed in Order 21 Rules 89 and 90 to get the said sale set aside. In paragraph nos. 3 and 4 of the judgement, the Supreme court

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observed as follows:-

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“ As has been mentioned above, the suit was dismissed by the trial Court and that decision has been upheld by the first and the second appellate Courts on the ground that the decree against Ram Lal was a nullity and the sale held in execution of that decree was, therefore, void. It appears from the judgment of the High Court that, in that Court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of O. 32, R. 15 of the Code of Civil Procedure. It has been found as a fact that Ram Lal was insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable . This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was a decree which, has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be void . 4. ... In the present case the decree being a nullity, has to be treated as non est and, consequently the sale, when held, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of Rr. 89 and 90 of Order 21, C. P. C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale set aside . ...

¶83

This Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of Rr. 89 to 91, C.P.C. In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a

nullity .”

(Emphasis added)

Following the judgement of the Supreme court in Ram Chandra Arya (Supra) , the Patna High Court in Rambadan Rai and others Vs. Paltan Paswan and another (AIR 1977 Patna 1) held that a minor, against whom a decree had been passed without appointing a guardian, is not required to get it set aside as the same was a nullity and not binding on the minor. The High court held that in such a case an application by the minor under Order 9 Rule 13 C.P.C. for recall of the decree was not maintainable as no decree existed against him. The observations of the court in Paragraph 8 of the judgement are reproduced below:-

¶88

“8. From the view of law laid down in the above authorities, it manifestly follows that a minor not properly represented in a suit and against whom an ex parte decree has been passed, being not bound by the same, he being not a person properly made a defendant, cannot apply for setting aside the decree under Order 9, Rule 13 of the Code of Civil Procedure as setting aside a decree presupposes that the decree exists against the defendant. Such a decree being a nullity and not binding upon him, he is not required to get it set aside .”

¶89

(Emphasis added)

¶90

It was also held by this court in Khursheed Ahmad and ors Vs. Gulzar Ahmad and ors (AIR 2006 Allahabad 280) that the requirements of Order 32 Rule 3 were mandatory and courts should be overcautious to protect the interest of the minor where he has been made a party in the suit. In this context the observations of the court made in Paragraph 5 of the judgement are relevant and they are reproduced below:-

¶91

¶92

“5. From the aforesaid provision it is more than obvious that it is a mandatory requirement of the procedure for the Court to be overcautious to protect the interest of a minor who has been made a party to the suit . Therefore, the Court cannot dispense with the mandatory procedural requirement and when the petition for such appointment of guardian of minor defendant No. 3 was moved before it by the plaintiff as well as the minor's father, a party defendant in the suit, those petitions should have been taken first and disposed of, whereafter only the Court could further proceed in the suit .”

¶93

(Emphasis added)

¶94

Further, this court in Nathumal Vs. Mohd. Nazir Beg AIR 1955 Allahabad 584 held that where the minor was not represented in the suit because no service was effected on the guardian of the minor, the decree against the minor would be null and void. It was held by the court that in such circumstances the minor cannot be considered a party in the suit in the proper sense of the term and the decree would be without jurisdiction. It was observed by the court in Paragraph 5 of the judgement as follows:-

¶95

“5.In these circumstances there can, we think, be no doubt that the decree passed against the minor by the Revenue Court was void. Order 32, Rule 3, provides that

¶96

"Where the defendant is a minor, the Court, on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the suit for such minor."

¶97

If a guardian has been appointed by the Court and if owing to his gross negligence a decree is obtained against the minor, that decree will be voidable and not void, for the minor is a party to the decree: - 'Rameshwar Prasad v. Ram Chandra', AIR 1951 All 372 (FB) (A).

¶98

But if no service has been effected on the guardian and the Court has not appointed a guardian the minor is not represented in the suit at all and he is accordingly not a party to the suit in the proper sense of the term; and if he be no party to the suit a decree passed against him in that suit is passed

¶99

¶100

without jurisdiction and is null and void : - 'RashidUn-nissa v. Muhammad Ismail Khan', 36 Ind App 168 (PC) (B); - 'Partab Singh v. Bhabuti Singh', 40 Ind App 182 (PC) (C).”

¶101

(Emphasis added)

¶102

In Mubarak Vs. Deputy Director of Consolidation and others (1975 AWC 467), this court while dealing with a compromise decree entered into on behalf of the minor by a guardian who had not been so appointed under Order 32 Rule 3 and after referring to Nathu Mal (supra) and Ram Chandra Arya (supra) , held that the decree was a nullity and not binding on him as it was not beneficial to the interest of the minor. The relevant observations of the court in Paragraph 5 of the judgement are reproduced below:-

¶103

“Learned Counsel for the Petitioner contended that the Deputy Director of Consolidation committed a mistake apparent on the face of the record in holding that the said compromise was binding on the Petitioner. He invited my attention to Order 32 Rule 3 of the Code of Civil Procedure. He urged that unless an order of appointment of guardian ad litem is made in accordance with the provisions of Order 32 Rule 3 of the Code of Civil Procedure no one is authorised or entitled to function as a guardian of the minor. The submission of the learned Counsel for the Petitioner appears to be well founded. The provision of Order 32 Rule 3 of the Code of Civil Procedure as to the appointment of a guardian ad litem are imperative. In order to pass a valid and binding decree it is necessary that the appointment of guardian as contemplated by the aforesaid order has been duly made. If such an order has not been made the decree would be ineffective and not binding on the minor . A reference be made to the amendment made by the Allahabad High Court to the aforesaid Order 32(3) of the Code of Civil Procedure by which it has been directed that in every case where a minor is of over ten years of age a notice of the appointment of the guardian shall be issued to the minor as well. In the instant case I have already mentioned above that Mubarak, the Petitioner was admittedly over ten years' of age at the time when the aforesaid suit was filed. As a matter of fact a notice of the appointment of

¶104

¶105

guardian had also been issued to him but without waiting for the service or return of the aforesaid notices the compromise was entered into on 4-101968. Consequently I find that when the service of notice on the minor Defendant had not been made and there was no order appointing a guardian it must be held that the compromise decree entered into was void as against him. A reference may be made to the authorities reported in Nathu Mal v. Mohammad Nazir Beg AIR 1955 All. 534 in which it was held that a decree without the appointment of guardian is a nullity and void. Dealing with the same controversy in the case of an insane, where a guardian is required to be appointed under Order 32(15) of the Code of Civil Procedure the Supreme Court held that when no guardian of an insane was appointed and a decree was passed without such an order of appointment the decree was a nullity. The said case is reported in Ram Chand Arya v. Bhan Singh AIR 1966 SC 59.”

¶106

(Emphasis added)

¶107

Similarly, the provisions of Order 32 Rule 7 are also mandatory in nature and any compromise entered into on behalf of a minor by his guardian, without complying with the requirements of Rule 7, would be voidable against the minor. Order 32 Rule 7 is reproduced below:-

¶108

“ Order 32 Rule 7. Agreement or compromise by next friend or guardian for the suit

¶109

7. Agreement or compromise by next friend or guardian for the suit .— (1) No next friend or guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings, enter into any agreement or compromise on behalf of a minor with reference to the suit in which he acts as next friend or guardian.

¶110

(1-A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed is, in his opinion, for the benefit of the minor:

¶111

Provided that the opinion so expressed, whether in the affidavit or in the certificate shall not preclude the Court from examining whether the

¶112

¶113

agreement or compromise proposed is for the benefit of the minor.

¶114

(2) Any such agreement or compromise entered into without the leave of the Court so recorded shall be voidable against all parties other than the minor.”

¶115

Order 32 Rule 7 was incorporated in the Code to safeguard the interests of the minor as the minor himself is not in a position to safeguard his own interests. The provision has to be interpreted keeping in mind the object and purpose of the provision. It protects the interests of the minor against any negligence, fraud or collusion on the part of the guardian while entering into a compromise on behalf of the minor and even against ignorance on the part of the guardian regarding the interest of the minor. The ignorance of the guardian could be because of the illiteracy of the guardian, the social background of the guardian or due to any other reason. In order to protect the interest of the minor, Rule 7 prohibits a guardian from entering into a compromise without the leave of the court and the said leave has to be expressly recorded in the proceedings of the court. Further, under Rule 7(1-A) the application for leave filed by the guardian is required to be accompanied by an affidavit of the guardian and a certificate of the pleader, to the effect that, in the opinion of the guardian and the pleader, the proposed compromise was for the benefit of the minor. Rule 7(1-A) was added in the Code through Act no. 104 of 1976 with effect from 1.2.1977. In addition, the court is also required to examine whether the compromise was for the benefit of the minor and while permitting or accepting a

¶116

¶117

compromise, the court should be conscious that the interest of minor was involved in the case. The documents mentioned in Rule 7(1-A) are to assist the court in forming its opinion as to whether the proposed compromise was for the benefit of the minor. In proceedings relating to persons under disability, the court acts as loco parentis and, before approving a compromise it has to consider whether the compromise is for the benefit of the person under disability. The order passed by the court granting such a leave has to indicate that the court had taken into consideration all relevant aspects before forming an opinion that the compromise was for the benefit of the minor. The records of the case should reveal that the court was conscious that the interest of the minors was involved in the case. The court is not relieved of its responsibility merely because a guardian has been appointed for the minor or merely because an affidavit by the guardian of the minor or a certificate of the pleader was on record certifying that the proposed compromise was for the benefit of the minor.

¶118

26. In Chabba Lal Vs. Kallu Lal [AIR (33) 1946

¶119

P.C. 72], the Privy Council observed as follows:-

¶120

“... At the same time, it is clear that the terms of O. 32, R. 7, were not complied with. There was no formal application by the guardian-ad-litem for the leave of the Court to his entering into the agreement for reference to arbitration, nor was any such leave formally given, or expressly recorded in the proceedings. The note on the record quoted above does not show that the Judge realised that he was dealing with the guardian-ad-litem of minors. The requirement in O. 32, R. 7 that the leave of the Court be expressly recorded in the proceedings was added in 1908, and Sir Thomas Strangman for the appellant says that the addition to the rule merely gave statutory effect to the previous practice. Be that as it may, the rule is imperative and in their Lordships' view its terms must be strictly complied with . ...The interests of minors might well be

¶121

¶122

sacrificed by an improper reference to arbitration and it is necessary that their interest be protected by the Court. If minors successfully challenge an agreement to refer as not made in compliance with sub-s. (1) of rule 7, it is avoided against all parties under sub-s. (2).”

¶123

(Emphasis added)

¶124

The mandatory nature of Order 32 Rule 7 was also emphasised by this court in Om Pal and others Vs. Kirat Ram and ors 1984 (10) AWC 166 and in Rajendra Prasad Gupta Vs. Km. Purnima Sharma and others AIR 2006 Allahabad 270 .

¶125

In Om Pal (Supra) this court, in paragraph nos. 3 &4 of the judgement, observed as follows:-

¶126

“ 3. Sub-rule (1) of Rule 7 of Order 32 requires that there be leave granted by the court and the same be expressly recorded in the proceedings where the compromise be said to be entered into for and on behalf of the minors. The contention for the respondents is that there is leave granted in this case. To my mind it is not enough for the purpose of this sub-rule that the Court records an order to the effect that the guardian-ad-litem was being permitted to enter into compromise for the minors. There has to be some indication from the order that the Court below has taken into consideration the relevant aspects before the leave is granted . The suit was for specific performance of an agreement to sell, the minors admittedly had interest in the property proposed to be sold; it is well settled that relief of specific performance is discretionary. The court could have considered upon the facts and in the light of the material placed before it whether it would be to the ultimate benefit of the minors that the agreement be incorporated into a deed of sale in terms thereof. Grant of leave implies a consideration of the factor whether the leave thus granted would be for the ultimate benefit of the minors. Courts act as the guardian for the minors in relation to whom the Code has taken care to create a special protection. The provision is intended to safeguard the interest of the minors and in order that there may be no avoidable damage caused to their interest by an act or omission on the part of the guardian-ad-litem. The mere fact that the minors in this case is their mother cannot necessarily lead the court to the conclusion that the compromise sought to be entered into was for their benefit as well specially when the mother is an illiterate woman from the village side .

¶127

¶128

4. Sub-rule (1A) then insists upon an affidavit from the guardian of the minor besides a certificate by the counsel where the minors are represented by such counsel. There is no denial that on the date when the compromise was filed in the court below there was also a vakalatnama put in by certain counsel representing the minors. Admittedly, there is neither an affidavit from the mother, the guardian-ad-litem, nor a certificate from the counsel to the effect that the compromise proposed was for the benefit of the minors. This provision is intended evidently to assist the court in the matter of forming its opinion as to whether the compromise sought to be arrived at would benefit the minors. Certificate from the counsel is assumed to be given from a responsible person who is conversant with the facts of the case on the basis of the evidence brought to his notice and an affidavit from the guardian is also insisted upon from the point of view. Taking into consideration the object underlying this provision and the consequence that may flow in the event of the disregard thereof, it does appear to me that the provision is mandatory. In Bishundeo Narain and another v. Seogeni Rai and others A.I.R. 1951 S.C. 281, cited for the respondents also there is an observation to the effect that the provision contained in sub-rub (1) of Rule 7 is mandatory. That provision, as I mentioned above, is with respect to the grant of leave for entering into a compromise for and on behalf of the minors. The same would flow from sub-rule (1A) which is ancillary to what is contained in sub-rule (1). In the instant case sub-rule (1 A) has been observed in breach only. ”

¶129

(Emphasis added)

¶130

29. In Rajendra Prasad Gupta (supra) this court, in paragraph nos. 8 & 9 of the judgement, observed as follows:-

¶131

“8. A conjoint reading of Order 23 Rule 1 and Order 32 Rule 7 clearly show that it envisages that there should be an affidavit of the next friend and also if the minor or such other person is represented by a pleader, a certificate of the pleader to the effect that the amendment proposed is, in his opinion for the benefit of the minor or such other person. Similarly the legislatures have taken full precaution under order 32 Rule 7 that there should be express leave by the Court, recorded in the proceedings permitting the next friend or guardian for the suit to enter into an agreement or compromise on behalf of a minor with

¶132

¶133

reference to the suit property . In other words, Rule 7 of Order 32 mandatorily requires that an application for leave under sub rule (1) of Order 32 rule 7 should be accompanied by an affidavit of the next friend to the effect that the agreement or compromise proposed is in his opinion for the benefit of the minor." See Om Pal Vs. Kirat 1984 Alld. AWC 166." : (AIR 12984 All 206)

¶134

It further provides that when an application for leave is made, the court will, having regard to the interest of the minor pass a decree in terms thereof under Order 23 Rule 3 C.P.C. The idea behind the enactment of proviso to Order 23 Rule 1 (1) and Order 32 Rule 7 C.P.C. is to safeguard the interest of minor, as a minor is not in a position to safeguard his or her interest. The law provides special protection to protect the interest of minors and his property. These provisions are couched in mandatory form and should be interpreted in the like manner keeping in mind the object and purpose of the aforesaid provisions .”

¶135

(Emphasis added)

¶136

In Govinda Vs. Kailash AIR 1922 PC 186 , the Privy Council emphasised the necessity of a clear expression by the concerned court that the proposed compromise was for the benefit of the persons under disability and not able to give assent for themselves before the said compromise binds the person under disability. From the observations made by the Privy Council it is also evident that the court had to apply its mind to all the relevant aspects, after making due enquiries, before permitting the guardian to enter into a compromise or before sanctioning the compromise on behalf of the minor. The observations of the Privy Council in the aforesaid judgement are reproduced below:-

¶137

“ In truth, their Lordships are not in a position to decide; whether the terms of compromise which they are asked to sanction are beneficial to the parties who are under a disability , nor can Counsel who appeared before them give them the requisite assurance that they have been able to investigate all material matters , and that the Board can safely act in making the desired order.

¶138

¶139

All such questions are essentially and necessarily the proper subject for consideration of the Courts in India, who are in a position to institute the enquiries, to ask the questions, and to obtain the information which must always be required before sanctioning proceedings on behalf of people who are unable to assent for themselves . In rare cases it may be possible that this could be done here, and in their Lordships' desire to avoid the multiplication or prolongation of proceedings, they may occasionally accept the burden, as was done in the case of Sakinbai v. Shrnibai (1), but this is not the regular and usual course, and in this case they are unable to adopt it. In all cases where it is desired to bind persons under disability by a compromise, it is of the utmost importance that there should be a clear expression of opinion by the proper Court in India that such compromise is a beneficial one for those persons . ”

¶140

(Emphasis added)

¶141

Thus, the provisions of both Order 32 Rule 3 and Order 32 Rule 7 are mandatory in nature. However, any decree passed against a minor without complying with the provisions of Order 32 Rule 3 would be void and would not be required to be set aside and can be challenged in collateral proceedings, but a decree passed against a minor without complying with the requirements of Order 32 Rule 7 would, by virtue of Order 32 Rule 7(2), be merely voidable against the minor who would be entitled to get it set aside on ground of non-compliance of Order 32 Rules 7(1) and (1-A).

¶142

At this stage it would be relevant to refer to the application filed by the petitioners before the Deputy District Magistrate for setting aside the decree dated 22.7.1977. A reading of the aforesaid application shows that the allegations of the petitioners in the said application were that the mother of the petitioners was a pardanashin lady, the petitioners or their mother were not served any notice in Case no. 276 and consequently

¶143

¶144

had no knowledge of the case and thus could not appear in the case to oppose the claim of respondent nos. 3&4. It was stated in the application that the proceedings in the case were held behind the back of the petitioners and their mother and with some other person impersonating as the mother of the petitioners. It was stated in the application that apart from the aforesaid, proceedings in Case no. 276 were vitiated as no order was passed by the concerned court under Order 32 Rule 3 C.P.C. appointing a guardian for the petitioners and the compromise decree was passed without complying with the provisions of Order 32 Rule 7. It is evident that the case of the petitioners, as set up in their application, was that the decree dated 22.7.1977, apart from having been passed without complying with Order 32 Rules 3 & 7, had been obtained by respondent nos. 3&4 by practicing fraud on the court.

¶145

A decree obtained by fraud is a nullity and non-est in the eyes of law and can be challenged in any court, even in collateral proceedings. Further, every court has an inherent power to set aside a decree obtained by fraud practised upon that court. In this regard it would be relevant to refer to the observations of the Supreme Court in Chengalvaraya Naidu Vs. Jagannath (AIR 1994 SC 853) . In paragraph nos. 1 and 7 of the judgement the Supreme Court observed as follows:-

¶146

“1. "Fraud-avoids all judicial acts, ecclesiastical or temporal" observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment / decree -- by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings.

¶147

¶148

The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants. The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.”

¶149

(Emphasis added)

¶150

In India Bank Vs. Satyam Fibres (India) Pvt.Ltd. (AIR 1996 SC 2592) , the Supreme Court held that fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court and, under Section 151 of C.P.C., the court has the inherent power to set aside an order recording compromise obtained by fraud. In this respect the observations by the Supreme Court in paragraph nos. 20 to 23 of the judgement are relevant and are reproduced below:-

¶151

“ 20. By filing letter No.2775 of 26-8-91 along with the Review Petition and contending that the other letter, namely, letter No.2776 of the even date, was never written or issued by the respondent, the appellant, in fact, raised the plea before the Commission that its judgment dated 1611-1993, which was based on letter No.2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as letter No.2776 dated 26-8-91 was forged by the respondent for the purpose of this case. This plea could not have been legally ignored by the Commission which needs to be reminded that the

¶152

¶153

Authorities, be they Constitutional, Statutory or Administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as Fraud and Justice never dwell together (Fraus et jus nunquam cohabitant). It has been repeatedly said that Fraud and deceit defend of excuse no man (Fraus et dolus nemini patrocinari debent).

¶154

21. In Smith v. East Elloe Rural District Council 1956 AC 736, the House of Lords held that the effect of fraud would normally be to vitiate any act or order. In another case, Lazarus Estate Ltd. v. Beasley, (1956) 1 QB 702 at 712, Denning LJ said :

¶155

"No judgment of a Court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything".

¶156

22. The judiciary in India also possesses inherent power, specially under Section 151 CPC to recall its judgment or order if it is obtained by Fraud on Court . In the case of fraud on a party to the suit or proceedings the Court may direct the affected party to file a separate suit for setting aside the Decree obtained by fraud. Inherent power are powers which are resident in all Courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the construction of the Tribunals or Courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the Court's business.

¶157

Since fraud affects the solemnity, regularly and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court . Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall its order. (See: Benow Krishna Mukherjee v. Mohanlal Goenka, AIR 1950 Cal 287; Gajanand Sha v. Dayanand Thakur AIR 1943 Patna 127; Krishna Kumar v. Jawand Singh, AIR 1947 Nagpur 236; Devendra Nath Sarkar v. Ram Rachpal Singh, ILR (1926) 1 Lucknow 341 : AIR 1926 Oudh 315; Saiyed Muhammad Raza v. Ram Saroop, ILR (1929) 4 Lucknow 562 : AIR 1929 Oudh 385 (FB) : Bankey Behari Lal v. Abdul Rahman, ILR (1932) 7 Lucknow 350 : AIR 1932 Oudh 63; Lekshmi Amma Chacki Amma v. Mammen Mammen, 1955 Kerala Law Times 459). The Court has also the inherent power to set aside a sale brought about by fraud practised upon the Court (Ishwar Mahton v. Sitaram Kumar, AIR 1954 Patna 450) or to set aside the

¶158

¶159

order recording compromise obtained by fraud. (Bindeshwari Pd. Chaudhary v. Debendra Pd. Singh, AIR 1958 Patna 618; Smt. Tara Bai v. V. S. Krishnaswamy Rao, AIR 1985 Karnataka 270). ”

¶160

(Emphasis added)

¶161

In A.V.Papayya Sastry and others Vs. Government Of Andhra Pradesh and others AIR 2007 S.C.1546 the Supreme Court, while dealing with a situation where the High court had recalled its previous judgement affirmed by Supreme Court in Special Leave Petitions, rejected the argument of the appellants that the High court could not have recalled its previous judgement once it was affirmed by the Supreme court and held that fraud was an exception to the doctrine of merger. The relevant observations of the Supreme court in Paragraph nos. 38-40 are reproduced below:-

¶162

“38. The matter can be looked at from a different angle as well. Suppose, a case is decided by a competent Court of Law after hearing the parties and an order is passed in favour of the applicant/plaintiff which is upheld by all the courts including the final Court. Let us also think of a case where this Court does not dismiss Special Leave Petition but after granting leave decides the appeal finally by recording reasons. Such order can truly be said to be a judgment to which Article 141 of the Constitution applies. Likewise, the doctrine of merger also gets attracted. All orders passed by the courts/authorities below, therefore, merge in the judgment of this Court and after such judgment, it is not open to any party to the judgment to approach any court or authority to review, recall or reconsider the order. 39.The above principle, however, is subject to exception of fraud. Once it is established that the order was obtained by a successful party by practising or playing fraud, it is vitiated. Such order cannot be held legal, valid or in consonance with law. It is non-existent and non est and cannot be allowed to stand. This is the fundamental principle of law and needs no further elaboration. Therefore, it has been said that a judgment, decree or order obtained by fraud has to be treated as nullity, whether by the Court of first instance or by the final Court. And it has to be treated as non est by every

¶163

¶164

Court, superior or inferior.

¶165

Hence, the argument of Mr. Venugopal cannot be upheld.Even if he is right in submitting that after dismissal of SLPs, the respondent herein could not have approached the High Court for recalling its earlier order passed in April, 2000 and the High Court could not have entertained such applications, nor the recalling could have been done, in the facts and circumstances of the case and in the light of the finding by the High Court that fraud was committed by the land-owners in collusion with the officers of the Port Trust Authorities and Government, in our considered view, no fault can be found against the approach adopted by the High Court and the decision taken. The High Court, in our opinion, rightly recalled the order, dated April 27, 2000 and remanded the case to the authorities to decide the same afresh in accordance with law. ”

¶166

(Emphasis supplied)

¶167

It would also be relevant to refer to Section 44 of the Indian Evidence Act, 1872. Section 44 of the Indian Evidence Act provides that any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Sections 40, 41 or 42 and which has been proved by the adverse party were delivered by a court not competent to deliver it, or was obtained by fraud or collusion.

¶168

In Asharfi Lal Vs. Smt. Koili (dead) by L.Rs,

¶169

AIR 1995 SC 1440 , the Supreme Court held that a decree passed against a minor in a previous declaratory suit can be avoided by her in Consolidation proceedings under the Act 1953 if the negligence of the guardian in the declaratory suit leads to an inference that the decree was obtained by fraud or collusion and it was not necessary to have it set aside by instituting independent proceedings in a competent

¶170

¶171

court. In this regard observations of the Supreme Court in Paragraph nos. 14 and 15 of the judgement are reproduced below:-

¶172

“14. The question for consideration is whether, apart from filing a separate suit for setting aside a decree on the ground of gross negligence on the part of his next friend, it is permissible for a minor to avoid a decree, if relied upon in a subsequent proceeding, on the ground that the said decree was obtained on account of gross negligence on the part of his, next friend in the previous suit. This would be permissible only if Section 44, of the Evidence Act can be invoked. As pointed out earlier, the Privy Council in Talluri Venkata Seshayya v. Thadikonda Kotiswara Rao (AIR 1937 P. C. 1) (supra) has laid down that Section 44, of the Evidence Act cannot be extended to cases of gross negligence. But in the said case the Privy Council has observed that the Court cannot treat negligence, or gross negligence, as fraud or collusion, unless fraud or collusion is the proper inference from the facts. In other words, in cases where an inference of fraud or collusion can be drawn from the negligence or gross negligence of the next friend it would be permissible for a minor to avoid the judgment or decree passed in the earlier proceeding by invoking Section 44, of the Evidence Act without taking resort to a separate suit for setting aside the decree or judgment.

¶173

In the present case, the consolidation authorities have found gross negligence on the part of Smt. Budhna, the next friend of the appellant, in prosecuting the earlier declaratory suit filed by her in the name of the appellant inasmuch as Smt. Nanki, the mother of the appellant, was not examined as a witness and material documents were not produced although the said evidence was available. The question is whether an inference of fraud or collusion can be drawn from the said negligence on the part of Smt. Budhna, the next friend of the appellant. The Deputy Director (Consolidation) did not examine the case from this aspect. He has proceeded on the basis that gross negligence on the part of the next friend of the appellant entitles him to avoid the decree passed in the earlier declaratory suit. The High Court has set aside the said order of the Deputy Director (Consolidation) on the view that a decree obtained against a minor due to negligence of guardian is not void but voidable and the decree passed in the earlier declaratory suit was binding unless it was avoided by filing a suit in an appropriate Court and that the consolidation authorities were not competent to grant the declaration of adjudication on validity or otherwise of

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the decree. The High Court has taken note of the provisions contained in Section 44, of the Evidence Act but has held that the same were not of any assistance to the appellant. In taking the said view the High Court, with respect, has failed to note that if a judgment falls within the ambit of Section 44, of the Evidence Act it can be avoided in the proceedings in which it is sought to be relied upon and it is not necessary to have it set aside by instituting independent proceedings in a competent Court. What was required to be considered was whether the judgment in the earlier declaratory suit fell within the ambit of Section 44, of the Evidence Act and for that purpose it was necessary to examine whether an inference of fraud or collusion could be drawn from the gross negligence on the part of Smt. Budhna, the next friend of the appellant, in conducting the earlier declaratory suit . Since the matter has not been examined from this aspect, we consider it appropriate that the matter be remitted to the Deputy Director (Consolidation) for considering whether in view of the finding recorded by him that there was gross negligence on the part of Smt. Budhna in prosecuting the earlier declaratory suit filed an inference of fraud or collusion can be drawn so as to attract the provisions of Section 44, of the Evidence Act. If he finds that such an inference can be drawn he would not be bound by the judgment in the earlier declaratory suit but if he finds that such an inference cannot be drawn he would be bound by the said judgment till it is set aside by the competent Court in an appropriate proceeding. ”

¶176

(Emphasis added) 38. From the judgments referred above it is evident that the decree dated 22.7.1977 would be void and a nullity and not binding on the petitioners if the allegation of the petitioners are true so far as they relate to fraud and non compliance of Order 32 Rule 3. It is also relevant to note that the plea of fraud raised by the petitioners in their application related to fraud practised by respondents on the court. In case of fraud practised on the court the petitioners were entitled to file an application under Section 151 of C.P.C. before the same court for setting aside the decree. Thus, the application filed by the petitioners before the revenue court for setting aside the decree dated 22.7.1977 was maintainable under Section 151 C.P.C. However, on

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grounds that the decree was void because of noncompliance of Order 32 Rule 3, as well as on ground of fraud, if the said inference could be drawn from the facts alleged by the petitioners, the petitioners were entitled to file objections before the consolidation officer under Section 9-A(2) of Act, 1953 pleading that the said decree was not binding on them as the same was void because of non-compliance of Order 32 Rule 3 or it was obtained by fraud. Further, in case the allegations of the petitioners were true only so far as they related to non compliance of Order 32 Rule 7, the decree dated 22.7.1977 would be merely voidable against the petitioners and binding on them till set aside in appropriate proceedings. In such a situation also the petitioners were entitled to get it set aside either through a suit filed in the appropriate forum or through an application filed in the same court for setting aside the decree. The petitioners would not have been entitled to ignore the decree in any collateral proceedings and the objections filed by the petitioners before the consolidation authorities could not be considered ignoring the decree dated 22.7.1977. The aforesaid leads to the conclusion that in the circumstances pleaded by the petitioners their application before the revenue court for setting aside the decree dated 22.7.1977 as well as their objections before the consolidation courts were maintainable and could be decided simultaneously notwithstanding the notification dated 27.10.1990 issued under Section 4 of Act 1953 . In view of this peculiarity in the facts of the case, i.e., the alternative arguments available to the petitioners against the decree dated 22.7.1977, the argument of

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the counsel for the respondents that the proceedings instituted by the petitioners for setting aside the decree dated 22.7.1977 were not maintainable and the order dated 31.1.1997 passed by the Deputy District Magistrate was without jurisdiction cannot be accepted and stands rejected.

¶181

No order passed under Order 32 Rule 3 appointing a guardian for the petitioners in Case no. 276 has been brought to the notice of the court by respondent nos.3& 4 though in their supplementary counter affidavit the respondent nos. 3 & 4 have annexed a copy of the alleged application filed by the mother of the petitioners seeking leave of the court to enter into a compromise on behalf of the petitioners and a copy of the alleged compromise application filed in the said case purporting to contain the thumb impression of the mother of the petitioners has also been annexed with the supplementary counter affidavit. It has been stated in the supplementary counter affidavit filed by respondent nos. 3 & 4 that the mother of the petitioners had obtained permission of the court to enter into a compromise on behalf of the petitioners. However no order passed by the concerned court granting leave to the mother of the petitioners to enter into any compromise has been brought to the notice of the court. Further no certificate by the pleader or any affidavit by the mother certifying that the compromise was for the benefit of the minor and as stipulated in Order 32 Rule 7(1-A) has been brought to the notice of the court or annexed with any affidavit filed by respondent nos. 3& 4. It is pertinent to note that the compromise application was filed on 11.7.1977 and the case was decreed in terms of the compromise on

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22.7.1977. Order 32 Rule 7(1-A) was incorporated in C.P.C. with effect from 1.2.1977. In such a situation the affidavit of the mother of the petitioners and certificate of the pleader as stipulated in Rule 7 (1-A) were necessary before any leave could be granted to the mother of the petitioners to enter into any compromise on behalf of the petitioners. Apart from the aforesaid, the attention of the court has been drawn to the orders dated 11.7.1977 and 22.7.1977 passed by the trial court in Case no.276 and recorded at the back of the alleged compromise application jointly filed by respondent nos.3 & 4 and the mother of the petitioners. In its order dated 11.7.1977 the court merely acknowledged the fact that the parties had been identified by their counsel. The order dated 22.7.1977 passed by the court merely records that the parties had entered into a compromise and the case was being decreed in terms of the compromise. There is not even a formal recital in both the orders that the compromise was for the benefit of the minors. The order dated 22.7.1977 accepting the compromise is reproduced below:-

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vkns'k

¶185

“ mHk; i{kksa esa lqyg gks xbZ gSa okn oknh fMxzh fd;k tkrk gSA lqygukek fMxzh dk va'k gksxkA rnuqlkj dkxtkr esa veyijken fd;k tk;A okn dk [kpZ i{kx.k ogu djsaxsA i=koyh nkf[ky n¶rj gksA ”

¶186

It is evident that the orders were passed by the court mechanically and without applying its mind to the relevant aspects. A perusal of the aforesaid order does not indicate that the court had applied its mind to the question as to whether the alleged compromise was beneficial for the minors and also does not indicate that

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the court was conscious that it was dealing with the interests of minors whose alleged guardian was an illiterate pardanashin widow. In view of the fact that the minors did not get anything in return in the compromise and the alleged compromise was essentially an admission by the mother of the petitioners that the respondent nos. 3 and 4 had perfected their title over the disputed plots by adverse possession against the minors, it was necessary that there should have been some indication in the order of the court that the court had applied its mind to the compromise and the interests of the minor after properly examining the compromise as well as that in the opinion of the court, the compromise was for the benefit of the minors. The failure of the court to apply its mind to the interests of the minor and other relevant aspects of the case as stated earlier and the lack of any such indication in the order of the court while accepting the compromise vitiates the decree dated 22.7.1977 even if noncompliance of other mandatory requirements of Order 32 Rule 7 are ignored. Thus, the decree dated 22.7.1977 was voidable at the instance of the minors, i.e., the petitioners and was liable to be set aside at their instance.

¶189

The next issue for consideration before the court is whether the objections filed by the petitioners before the consolidation officer and the application filed by them before the revenue court to set aside the decree were within time and whether the delay in filing the same was properly explained if the objections and application were beyond the time prescribed in the relevant statutory provisions.

¶190

Before dealing with the relevant statutory

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provisions to consider the aforesaid issue it would be appropriate to note that admittedly the petitioners were minors when Case no. 276 was filed and were minor on the date the suit was decreed, i.e., 22.7.1977. It is apparent from the impugned orders that the age of the petitioners was not considered by the courts below and the Additional Commissioner as well as the consolidation authorities held the proceedings instituted by the petitioners to be time barred and highly belated and that there was no proper explanation by the petitioners for the delay in filing the same. The aforesaid findings would be relevant only if the proceedings instituted by the petitioners had been instituted beyond the time prescribed for the same. The petitioners have annexed, as Annexure no. 5 in Writ Petition No. 8100 of 2001, a copy of the High school certificate of Hari Shankar Giri showing his age as 15.7.1974. The said document has not been specifically denied in the counter affidavit filed by the respondents and only a vague and formal denial has been recorded in Paragraph no. 20 of the counter affidavit. Hari Shankar Giri is petitioner no. 1 in Writ Petition No. 8100 of 2001 and petitioner no. 2 in Writ Petition No. 15940 of 1999. Further, a perusal of the application filed by the petitioners for setting aside the decree dated 22.7.1977 and the objections filed by the petitioners before the Consolidation officer reveals that Prem Shankar Giri was shown as a minor on the date of filing the application and the objections. The application filed by the petitioners for setting aside the decree has been annexed as Annexure no.2 to the Writ Petition no. 8100 of 2001 and the objections filed by the petitioners before the Consolidation Officer has been annexed as

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Annexure No. 1-A to Writ Petition no. 15940 of 1999. Prem Shankar Giri is petitioner no. 4 in Writ Petition no. 8100 of 2001 and petitioner no. 1 in Writ Petition No. 15940 of 1999. The above proceedings were instituted by the petitioners before the revenue court and the consolidation courts on 6.6.1995.It would also be relevant to note that the application filed by the petitioners before the revenue court for setting aside the decree dated 22.7.1977 was filed under Order 9 Rule 13 read with Section 151 C.P.C. The aforesaid facts are relevant to decide the issue of limitation raised by the counsel for the respondents.

¶195

Sections 6,7 and 8 of the Act, 1963 deal with the rights of minors so far as limitation for instituting any proceedings are concerned. The said provisions are reproduced below:-

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“6. Legal disability.— ( 1 ) Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.

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( 2 ) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified.

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( 3 ) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.

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( 4 ) Where the legal representative referred to in sub-section ( 3 ) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained sub-sections ( 1 ) and ( 2 ) shall apply.

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( 5 ) Where a person under disability dies after the disability ceases but within the period allowed to him under this

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section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.

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Explanation . — For the purposes of this section ‘minor’ includes a child in the womb.

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7. Disability of one of several persons.— Where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

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Explanation I . — This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.

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Explanation II . — For the purposes of this section, the Manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.

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8. Special exceptions.— Nothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.”

¶208

A joint reading of Sections 6,7 and 8 of the Act, 1963 shows that in case the person having the right to sue or to file an application suffers from a disability stated in Section 6, he may file the suit or application within the same period as would have otherwise been allowed from the time specified thereor, i.e., the period prescribed in third column of the Schedule to the Act 1963, after the disability has ceased. Minority is one of the disabilities stated in Section 6. However Section 7, to some extent, limits the indulgence given by Section 6. It provides that where one of the several persons

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jointly entitled to sue or file an application is under any such disability, i.e., the disability stipulated in Section 6 and a discharge can be given without the concurrence of the person under disability, there will be no extension of limitation and ordinary period of limitation would apply against all such persons including the persons under disability. But, where no such discharge can be given, limitation, by virtue of Section 6, shall extend with reference to all the persons and not only with reference to the person under disability and time will not start to run against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability of all has ceased. Section 8 is in the nature of proviso to Sections 6 & 7 and restricts the period of limitation which can be extended under the two sections to a maximum period of three years.

¶211

In the light of Section 7 of Act 1963 reference may be made of the judgement of this court in Surendra Singh Vs Deputy Director of Consolidation AIR 1976 Allahabad 510 , wherein this court held that one co-sharer in a joint Bhumidhari holding cannot give a valid discharge on behalf of other co-sharers. Observations made by the court in paragraph nos. 7 to 9 are reproduced below:-

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“ 7. It is suggested that where there are more than one cosharers in the Bhumidhari holding, their joint consent is necessary.

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Section 7 of the Limitation Act provides:-

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8. The crux of the matter, which requires consideration, is whether a co-sharer can give valid discharge without concurrence of the other co-sharers. In the case of Sarda Prasad v. Lala Jamuna Prasad, (AIR 1961 SC 1074) the Supreme Court has held that the word "discharge? occurring in Section 7 of the Limitation Act means to free from liability and that the provisions of this Section apply to a case of

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delivery of possession of an immovable property, Section 7 of the said Act hence on its own terms will be applicable to a suit for possession of an immovable property. In the case of Deshraj v. Deputy Director of Consolidation, (1970 All WR (HC) 16), a Division Bench of this Court has held that on a reading of Section 341 of U. P. Z. A. and L. R. Act with Section 29 (2) of the Limitation Act it is clear that Section 6 of the Limitation Act would apply to the suits under Section 209 of the U. P. Z. A. and L. R. Act. On the same reasoning the provisions of Section 7 of the Limitation Act will also be applicable to proceedings under the U. P. Zamindari Abolition and Land Reforms Act.

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On the question whether one co-sharer alone can give discharge without the consent of the other, the decision of the Privy Council in the case of Jawahar Singh v. Udai Prakash, (AIR 1926 PC 16) is directly on point. It was held therein that a suit brought by some sons within three years of their majority to set aside alienation by father is not barred though one of the sons had long before three years reached majority. This principle was laid down in relation to Section 7 of the Limitation Act. The same principle, in our opinion, would be applicable to a situation where one of the sons does not bring the suit for possession against a trespasser within three years of his attaining majority, while the other son continues to be a minor. In terms of Section 7, the son who had attained majority first cannot give a valid discharge without the concurrence of the other. In that event the period of limitation would not run against them. The time will start running when the other brother also ceases to be under the disability, namely, when he becomes major .”

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(Emphasis supplied)

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Article 123 of the Act 1963 prescribes the time limit for filing an application under Order 9 Rule 13 C.P.C. as thirty days from the date of decree or when the applicant had knowledge of the decree if notice or summons was not duly served on him. However, no limitation is specifically prescribed in the Act 1963 for filing an application under Section 151 C.P.C. and therefore an application under Section 151 C.P.C. is covered by the residuary Article 137, i.e., the limitation for filing an application under Section 151 C.P.C is three years from the date when the right to file the application accrues. In this context it would be relevant

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to refer to judgement of this court in Chandradeo Pandey Vs. Sukhdeo Rai AIR 1972 Allahabad 504 (F.B.) where this court while dealing with an application filed for substitution of the heirs of the deceased party in a Revision held that such an application would be an application under Section 151 and observed, in Paragraph no. 7 of the judgement, as follows:-

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“ That the application for substitution of heirs in revision is an application under Section 151 of the Code of Civil Procedure can admit of no doubt. Therefore, the period of limitation for bringing the heirs of the deceased Opposite Party No.10 would be three years under Article 137 of the new Limitation Act . The application for substitution was filed within three years of the death of Opposite Party No.10, so there is no question of abatement or of condonation of delay.”

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(Emphasis supplied)

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The application for setting aside the decree dated 22.7.1977 was filed by the petitioners on 6.6.1995. The application was filed under Order 9 Rule 13 as well as under Section 151 C.P.C. The date of birth of petitioner no. 1 in Writ Petition no. 8100 of 200, as recorded in his High School Certificate is 15.7.1974 and therefore petitioner no.1 attained majority on 14.7.1992. In view of the judgement of this court in Chandradeo Pandey (supra) and because the application filed by the petitioners was maintainable under Section 151 C.P.C., Article 137 of the Act 1963 was applicable and the application was to be filed within three years from the date the right to file the application accrued in favour of petitioner no. 1. In view of Section 6 read with Article 137 of Act 1963, the petitioner no. 1 could file the application within three years from 14.7.1992 without having to explain the delay in filing the application. The

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application was filed on 6.6.1995 and was therefore within time. Apart from the above, the petitioner no. 4 in Writ Petition No. 8100 of 2001 was minor even at the time of filing the said application. In the application itself, petitioner no. 4 was shown as minor and was represented by his mother. In view of Section 7 of Act 1963 read with the judgement of this court in Surendra Singh (supra) wherein this court held that one co-sharer in a joint Bhumidhari holding cannot give a valid discharge on behalf of other co-sharers, the fact that other brothers, i.e., petitioner nos. 2 and 3, had become major earlier would not be relevant to decide the limitation in filing the application. Thus, the application dated 6.6.1995 filed by the petitioners instituting Restoration Case No. 251 before the Deputy District Magistrate, i.e., the revenue court for setting aside the decree dated 22.7.1977 was not beyond time and the petitioners were not required to explain the delay in filing the said application and were also not required to file any application under Section 5 of Act 1963 for condoning the delay in filing the application for setting aside the decree dated 22.7.1977. The fact that the petitioners had filed an application under Section 5 of Act 1963 would not deprive them of their right to plead that the application filed by them for setting aside the decree dated 22.7.1977 was within time. Thus the argument of the counsel for the respondents that the application filed by the petitioners was highly belated and the petitioners had not been able to properly explain the delay in filing the application is not acceptable. For the same reason the opinion of the Additional Commissioner recorded in his order dated 22.6.1998 that the Deputy District

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Magistrate had not property considered the delay by the petitioners in filing the application was also not relevant to decide the legality of the order dated 31.1.1997 as the failure of the Deputy District Magistrate to properly consider the alleged delay did not vitiate the order dated 31.1.1997.

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For the aforesaid reasons, the decree dated 22.7.1977 was voidable at the instance of the petitioners and the application filed by them for setting aside the decree was within time and, therefore, the order dated 31.1.1997 passed by the Deputy District Magistrate setting aside the decree dated 22.7.1977 is liable to be restored. Consequently, the order dated 23.11.2000 passed by the Board of Revenue in Reference No. 12 to 14 of 1997-98 and the order dated 22.6.1998 passed by the Additional Commissioner in Revision Nos. 203-B,204-B and 205-B of 1997 are liable to be set aside.

¶230

Under the Act, 1953 any person who disputes the correctness of the entries in the records or in the extracts published under Section 9(1) can file his objections under Section 9-A(2) of Act 1953 within 21 days of the receipt of notice sent under Section 9(1). Section 11-A of Act 1953 provides that no question in respect of claims to land relating to the consolidation area which had been raised under Section 9 or might and ought to have been raised under Section 9, but had not been so raised, shall be raised at any subsequent stage of the consolidation proceedings. The subsequent stage in consolidation proceedings and referred in Section 11-A are proceedings relating to allotment of Chaks after publication of the provisional consolidation scheme under Section 20. The bar of Section 11-A

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would not apply till the provisional consolidation scheme relating to the village is published under Section 20.

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Section 53-B of Act 1953 provides that Section 5 of the Act 1963 shall apply to the applications, appeals, revisions and other proceedings under the Act 1953 or the rules made thereunder. Section 53-B does not expressely exclude other provisions of Act 1963 and therefore by virtue of Section 29 of Act 1963, Sections 6, 7 and 8 of Act 1963 are applicable to proceedings under the Act, 1953. In this context it would be relevant to refer to Section 29(2) of Act, 1963 which is reproduced below:-

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“29. Savings.— ( 1 ) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872). ( 2 ) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of section 3 shall apply as if such period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.

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( 3 ) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.

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( 4 ) Sections 25 and 26 and the definition of “easement” in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.”

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The Supreme Court in Ajab Singh Vs. Antram AIR 2009 SCW 2238 , while approving the view of this

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court in Onkar Nath Dubey Vs. Deputy Director of Consolidation 1974 R.D.40 (H.C.) and in a case arising out of proceedings under the Act 1953 upheld the order of the revisional court, i.e., the Deputy

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Director of Consolidation holding that Section 6 was applicable in the proceedings. The relevant observations of the Supreme Court are reproduced below:-

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“4. One of the grievances which has been raised by the appellants herein is that the order of Consolidation Officer dated 23.12.1981 and that of the Settlement Officer, Consolidation dated 29.11.1982, have been upset by the Deputy Director, Consolidation while entertaining a revision filed by the contesting respondents on 10.8.1993, which according to the appellant, is barred by limitation. So the complaint is that the order which has been passed by the Deputy Director, Consolidation is bad in law and was passed ignoring the bar of limitation . That is the main challenge before us.

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5. The admitted facts of the case are that in the year 1981 and 1982 both Haribabu and Antram, the contesting respondent Nos. 1 and 2, were minors. At that time the orders dated 23.12.1981 and 29.11.1982 were passed. They filed a revision application along with an application for condonation of delay in the year 1993. In the revision application, the Deputy Director Consolidation, while relying on a number of judgments, held that the revision cannot be treated as barred by time. It appears from a decision in Onkar Nath Dubey vs. Dy. Dir. of Consolidation and Ors. Civil Misc. Writ No. 3066 of 1972 (R.D. 1977-40 (HC), that Section 6 of the Limitation Act read with Section 341 of the said Act would be applicable in a case like this.

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7. Section 341 of the said Act runs as under :- "341. Application of certain Acts to the proceedings of this Act - Unless otherwise expressly provided by or under this Act, the provisions of the Indian Court fees Act, 1870, the Code of Civil Procedure, 1908 and the [Limitation Act, 1963] [including section 5 thereof] shall apply to the proceedings under this Act."

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8. On a conjoint reading of the aforesaid two provisions, we intend to hold that Section 6 of the Limitation Act is expressly applicable to the proceedings under the said Act and Section 6 of the Limitation Act referred to above engrafts an enabling provision to a minor to institute a proceeding by way of filing a suit or by making an application after he ceases to be a minor within the time prescribed to any other person who is not a minor. 9. The decision of the Revisional Authority in entertaining the revision at the instance of the contesting respondent Nos. 1 and 2 therefore does not suffer from any jurisdictional error. ”

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(Emphasis added)

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It would also be relevant to refer to the judgement of this court in Onkar Nath Dubey Vs. Deputy Director of Consolidation 1974 R.D.40 (H.C.) wherein this court applied Section 6 of Act, 1963 to hold that the objections filed under Section 9-A of the Act 1953, were within time. The relevant observations of the court in Onkar Nath Dubey (supra) are reproduced below:-

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“4. The contention of the learned Counsel for the Respondent that the Petitioner'sclaim was barred by time is misconceived. As already noted the Petitioner attained majority on 8th January 1959. He could file a suit within three years of his attaining majority as prior to that period being a minor he was disabled person to bring any suit or proceeding for the cancellation of the sale deed. Section 6 of the Limitation Act lays down that where a person entitled to institute a suit is at the time from which the prescribed period of limitation is reckoned a minor or insane or idiot, he may institute a suit within the same period after the disability has ceased. This section protects the right of a person who is legally disabled to bring action in a court of law, namely a minor or insane or an idiot. The period of limitation in such a case for the purpose of filing a suit shall commence from the date of discontinuance of the disability. Section 6 of the Limitation Act read with Section 341 of the U.P.Zamindari Abolition and Land Reforms Act is applicable to the proceedings under the latter Act. In Badal v. Deputy Director of Consolidation 1970 AWR 456 a Full Bench of this Court held that Section 49 of the U.P. Consolidation of Holdings Act bars a Fsuit under Section 209 of the U.P. Zamindari Abolition and Land Reforms Act and a person who had limitation to file a suit under Section 209 of the 1951 Act on the date of notification under Section 4 of the U.P. Consolidation of Holdings Act has full right to get relief under the consolidation proceedings notwithstanding his failure to file a suit under Section 209 of the 1951 Act. In Shitla Prasad v. Bans Bahore 1974 AWR 48, another Full Bench held that Section 6 of the Limitation Act is applicable to a suit under Section 209 even in the absence of any express provision in Section 341 making Section 6 applicable. These authorities leave no room for any doubt that the Petitioner was entitled to the benefit of Section 6 of the

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Limitation Act. As already noted he attained majority on 8th January 1959, and the period of limitation for filing the suit under Section 209 would commence from that date. Since before the expiry of the period of limitation of three years the period was enhanced to six years the Petitioner could legally file a suit under Section 209 within six years from the date of his attaining majority. Admittedly the Petitioner filed objection under Section 9A of the U.P. Consolidation of Holdings Act within a period of six years from the date of his attaining majority. The Petitioner's claim was therefore not barred by limitation. The consolidation authorities committed patent error of law in rejecting his claim on the ground of limitation .”

¶251

(Emphasis added)

¶252

From the impugned order dated 12.1.1998 passed by the Consolidation officer (annexed as Annexure No. 3 to the Writ Petition No.15940 of 1999) it appears that the publication under Section 9 of Act 1953 was made on 31.1.1992 and publication under Section 20 was made on 25.3.1994. However, from the impugned order dated 15.2.1999 passed by the Deputy Director of Consolidation (which has been annexed as Annexure No. 4 to Writ Petition No. 15940 of 1999) it appears that the publication under Section 9(1) of Act 1953 was made on 25.3.1994. The difference between different orders regarding the date of publications under Sections 9 and 20 may not be relevant in light of the reasons given subsequently. The time limit prescribed for filing the objections under Section 9(2) expires after 21 days from the receipt of the notice issued under Section 9(1) (a) of Act 1953. The petitioners, obviously were not issued any notice under Section 9(1)(a) of Act 1953 as they were not recorded in the revenue records relating to the Basic year, i.e., in 1990 when the notification under Section 4 was published. The name of the petitioners was excluded from the revenue records

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apparently because of the decree dated 22.7.1977 whereby the respondent nos. 3& 4 were declared Bhumidhars of the disputed plots. The petitioners filed their objections before the consolidation officer on 6.6.1995. The objections were evidently filed much after the publication under Section 9(1) (b) of Act 1953. Normally, the objections would have been time barred. The petitioner no. 1 in Writ Petition no. 8100 of 2001 who is also petitioner no. 2 in Writ Petition no. 15940 of 1999 became major on 14.7.1992. The counsel for the petitioners has argued that in view of Section 8 of the Act 1963, the objections could be filed within three years from the date the said petitioner attained majority and thus the objections would have been within time till 13.7.1995. The said argument of the counsel for the petitioners is not acceptable in as much as Section 8 merely limits the concession given by Section 6, to a person under disability, to a maximum period of three years after the disability ceases. Section 8 does not enable a person to extend the period to three years after his attaining majority even though the period prescribed under the relevant Act is less than three years. By Section 6 the person under a disability is given the right to institute proceedings within the same period after the disability ceases, as would otherwise have been allowed from the time specified therefor in the relevant statute. In case the period prescribed is less than three years, Section 8 does not extend the period to three years and the proceedings have to be instituted, after the disability has ceased, within the time prescribed by the relevant statute. If the matter is viewed from the said perspective, the objections filed by the petitioners were time barred.

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However, as noticed earlier in the judgement, the petitioner no. 4 in Writ Petition no. 8100 of 2001 (who is petitioner no. 1 in Writ Petition No. 15940 of 1979) was shown as minor in the objections filed before the consolidation officer and was represented by his mother in the proceedings before the consolidation officer. In that view of the matter and in the light of Section 7 of Act 1963 read with the judgement of this court in Surendra Singh (supra), the objections filed by the petitioners before the consolidation officer were within time as petitioner no.4 was still under a disability on the date of filing the objections and the fact that the disability of other petitioners had ceased before would not be relevant to decide whether the objections filed by the petitioners were time barred.

¶257

Apart from the above, the petitioners had filed their objections before the Consolidation officer pleading that the decree dated 22.7.1977 was void. The facts necessary to plead that the decree was void had been stated by the petitioners in their objections and have been reproduced earlier in the judgement. In case the decree was void, the petitioners were entitled to ignore it, and subject to them being able to prove that the decree was void, plead that the respondent nos. 3 &4 were in occupation of the land without any valid title. If consolidation proceedings had not intervened on 27.10.1990, the petitioners, on attaining majority, would have been entitled to institute proceedings under Section 209 of the Act 1950 for ejectment of respondent nos. 3 & 4. Under Item 30 of Appendix III to the Uttar Pradesh Zamindari Abolition And Land Reform Rules, 1952 (hereinafter referred to as Rules 1952), the limitation prescribed for proceedings under

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Section 209, is twelve years from 1^st . of July following the date of occupation. By virtue of Section 8 of Act 1963, the petitioner no. 1, i.e., Hari Shankar Giri, would have been entitled to institute proceedings under Section 209 of Act 1950 within three years from the date of his attaining majority. Thus the suit filed by petitioner no. 1 under Section 209 of Act 1950 would have been within time upto 13.7.1995. It was held in Badal Vs. Deputy Director of Consolidation 1970 ALJ 510 (FB) that if the land was situated in a consolidation area, suit under Section 209 of Act 1950 in regard to the said land would be barred after the notification under Section 4 of Act 1953 but notwithstanding the bar of Section 49, the landholder would be entitled to get relief under Act 1953 notwithstanding his failure to file a suit under Section 209 of Act 1950 if the landholder had limitation to file a suit under Section 209 on the date of notification under Section 4 of Act 1953. The operative part of the judgement of the Full Bench is reproduced below:-

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“ The two petitions are returned to the learned Single Judge for decision on the merits after the following findings:

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Section 49 of the UP Consolidation of Holdings Act bars a suit Under Section 209 of the UP ZA and LR Act if the land in respect of which the suit is proposed to be filed is situate in an area under consolidation operations.

¶262

A person who has still limitation to file a suit Under Section 209 of the UP ZA and LR. Act on the date of notification Under Section 4 of the UP Consolidation of Holdings Act has every right to get relief under the provisions of the latter Act notwithstanding his failure to file a suit Under Section 209 of the former Act .”

¶263

(Emphasis added)

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Relying on Badal (supra) , this court in Onkar Nath Dubey (supra) held as within time, the objections under Section 9-A of the Act 1953 filed by

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the tenure holder within six years of his attaining majority, the period prescribed at that time for filing a suit under Section 209.

¶267

The notification under Section 4 of Act 1953 was published on 27.10.1990. The disability of petitioner no. 1 as minor ceased on 14.7.1992. Thus, on the date of notification under Section 4 the petitioner no. 1 still had the limitation to file a suit under Section 209 of Act 1950 for ejectment of respondent nos. 3 &4. Therefore in view of the law laid down by this court in Badal (supra) and Onkar Nath Dubey (supra), the petitioner no. 1 could file his objections before the Consolidation officer and such objections would have been within time till 13.7.1995. The objections before the Consolidation officer were filed by the petitioners on 6.6.1995. Thus, in any case, the objections filed by the petitioners before the Consolidation officer were within time and the petitioners did not have to explain the delay in filing the objections and were also not required to file any application under Section 5 of Act 1963 praying to condone the delay in filing their objections. The mere fact that the petitioners had filed application under Section 5 of the Act 1963 praying to condone the delay in filing their objections would not prevent the petitioners from pleading that, considering there disability, there was no delay in filing the objections and the consolidation courts had erred in dismissing the objections of the petitioners on ground of alleged delay in filing the same. The Consolidation officer and the Deputy Director of Consolidation have not considered the said aspect in their impugned orders dated 12.1.1998 and 15.2.1999 while rejecting the objections filed by the petitioners on the ground of delay.

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The above discussions and findings can be summarized as follows:

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i) The proceedings instituted by the petitioners before the revenue court and the consolidation courts were maintainable simultaneously.

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ii) The proceedings before the revenue court and the consolidation authorities instituted by the petitioners were within time and the petitioners did not have to explain the delay in instituting the said proceedings. iii) The decree dated 22.7.1977 was voidable at the instance of the petitioners due to the omission of the trial court to apply its mind to the relevant aspect and its failure to ascertain whether the alleged compromise was beneficial to the minors.

¶272

iv) Consequently the orders dated 22.6.1998 passed by the Additional Commissioner, Azamgarh Division, Azamgarh, 23.11.2000 passed by the Board of Revenue, U.P at Allahabad, 12.11.1998 passed by the Consolidation Officer, Sadar, District:- Ballia as well as the order dated 15.2.1999 passed by the Deputy Director of Consolidation and challenged in Writ Petition Nos.15940 of 1999 and 8100 of 2001 are contrary to law and liable to be set aside.

¶273

For the aforesaid reasons Writ Petition No.8100 of 2001 and Writ Petition No.15940 of 2009 are allowed. The order dated 22.6.1998 passed by the Additional Commissioner, Azamgarh Division, Azamgarh in Revision Nos.203B of 1997, 204B of 1997 and 205B of 1997 as well as the order dated 23.11.2000 passed by the Board of Revenue, U.P. at Allahabad in Reference No. 12 to 14 of 97-98 challenged in Writ Petition No. 8100 of 2001 are hereby quashed. Further, the order dated 12.11.1998 passed by the Consolidation Officer,

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Sadar, District:- Ballia as well as the order dated 15.2.1999 passed by the Deputy Director Of Consolidation, Ballia in Revision No. 1748 and challenged in Writ Petition No. 15940 of 1999 are also hereby quashed. The matter relating to objections filed by the petitioners under Section 9-A(2) of Act 1953 before the Consolidation Officer, Sadar, District:- Ballia is remanded back to the Consolidation Officer, Sadar, District:- Ballia to pass fresh orders on the objections filed by the petitioners within a maximum period of six months from the date a certified copy of the order is filed before him after giving the parties an opportunity to lead their evidence and in the light of the observations made in the judgment. The consolidation officer may conduct the proceedings in the case on a day to day basis if the same would be necessary in order to dispose of the objections of the petitioners within the time fixed in the judgment

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With the aforesaid directions Writ Petition No. 8100 of 2001 and Writ Petition No.15940 of 2009 are allowed .

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Order Date :- 26.4.2018 IB

Prem Shanker Giri and Others v. D.D.C. Ballia and Others

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Prem Shanker Giri and Others v. D.D.C. Ballia and Others

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