Allowed

Mahendra Lal Jaini (Since Deceased) and 12 Others v. the Praduman Nagar Co- Operative Housing Society Ltd. and Another

Allahabad HC25 Aug 2022A227/5305/2019

Case brief

AI extract

What is this about?

This writ petition challenged orders dismissing multiple restitution and recall applications filed by the petitioner due to default of counsel. The High Court allowed the petition, emphasizing that courts should not shut the doors of justice for litigants solely due to an advocate's fault, especially when orders from a Superior Court remain unimplemented. The impugned orders were set aside, and th

What did the court decide?

Impugned orders dated 23.05.2019, 11.11.2014, 11.05.1993, and 01.05.1992 set aside. Civil Misc. Restitution Case No. 173/1982 restored to file subject to deposit of Rs. 5,000 cost. Case to be decided

Mahendra Lal Jaini (Since Deceased) and 12 Others Vs… — Property and Title | Allahabad HC (2022)

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Reserved On: 04.08.2022 Delivered On:25.08.2022

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Court No. - 01

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Case :- MATTERS UNDER ARTICLE 227 No. - 5305 of 2019

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Petitioner :- Mahendra Lal Jaini (Since Deceased) And 12 Others Respondent :- The Praduman Nagar Co- Operative Housing Society Ltd. And Another Counsel for Petitioner :- Fazal Kareem Zafari,Kshitij Shailendra Counsel for Respondent :- Pankaj Agarwal

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HON'BLE PIYUSH AGRAWAL,J.

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1. Heard Shri Kshitij Shailendra, learned counsel for the petitioners and Shri Pankaj Agarwal, learned counsel for the respondents.

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2. The present petition has been filed under Article 227 of the Constitution of India for the following reliefs:-

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(i) kindly, set aside the impugned order dated 23.05.2019 passed by the Additional District Judge, Court No. 4, Saharanpur in Civil Revision No. 157 of 2012 (Mahendra Lal Jaini Vs. the Praduman Nagar Co-operative Housing Society Ltd.) ( Annexure No. 1 to this petition );

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(ii) kindly, set aside the impugned order dated 11.11.2014 passed by the First Additional Civil Judge (Senior Division), Saharanpur in Misc. Case No. 27 of 1993 (Mahendra Lal Jaini Vs. the Praduman Nagar Co-operative Housing Society Ltd.) ( Annexure No.2 to this petition );

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(iii) kindly, set aside the impugned order dated 11.05.1993 passed in Misc. Case No. 47 of 1992 (Mahendra Lal Jaini Vs. the Praduman Nagar Co-operative Housing Society Ltd.) (i.e., the recall application concerning Misc. Case No. 173 of 1982) ( Annexure No.3 to this petition );

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(iv) kindly set aside the impugned order dated 01.05.1992 passed in Misc. Case No. 173 of 1982 (Mahendra Lal Jaini Vs. the Praduman Nagar Co-operative Housing Society Ltd.) (i.e., the application under section 144 Cr.P.C.) ( Annexure No.4 to this petition );

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3. The facts of the case are that on 05.12.1951, one Virendra Goyal had executed a registered sale deed, by which he sold 22 shops and one canteen room in Goyal Market/Virendra Pratap Market, Shaheed Ganj Bazar at Saharanpur to the father of the petitioners, i.e., Late Mahendra Lal Jaini.. On 10.02.1952, Virendra Goyal and Km. Bhagya Gurha had jointly executed another registered sale deed, by which they sold their 44 shops, plus two separate rooms, one urinal and one stair case in the same market, i.e., Goyal Market, Shaheed Ganj Bazar at Saharanpur, to the father of the petitioner, namely, Late Mahendra Lal Jaini. On 09.02.1965, Virendra Goyal had executed yet another registered sale deed, by which he sold once again his 3/4^th share in 68 shops in Goyal Market to the respondent - Praduman Nagar Co-operative Housing Society Ltd., Rose Bank Nursery, Civil Lines, Saharanpur.

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4. On the basis of the aforesaid sale deed dated 09.02.1965, the respondent - Society claimed its ownership/title in the aforesaid market and filed Arbitration Case No. 39/1965 before the soleArbitrator, Mr. H.K.Govil, C.O. (Banking), which was awarded in favor of the respondent - Society vide award dated 20.06.1965. During the pendency of Appeal No. 4/1965 before the District Assistant Registrar, Co-operative Societies, Saharanpur, the respondent - Society succeeded to take possession of 3/4^th share of all the shops in the aforesaid Goyal Market in the Execution Case No. 34/1965. However, the petitioners’ father remained in joint possession for 1/4^th share of the property as the decree was for joint possession and the possession was delivered by affixing a

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copy of the warrant, as is clear from the order dated 30.3.1971 passed by this Court in First Appeal No. 120/1970 ( Mahendra Lal Jaini vs. Praduman Nagar Co-operative Housing Society Ltd., Saharanpur ). Appeal No. 4/1965 preferred by Late Mahendra Lal Jaini against the order dated 20.06.1965 before the District Assistant Registrar, Co-operative Societies, Saharanpur was also dismissed vide order dated 21.04.1975. Against the order dated 21.04.1975, Mahendra Lal Jaini had filed Civil Misc. Writ Petition No. 7779/1975 before this Court, which was finally decided in favor of the petitioners’ father vide order dated 07.10.1982 observing that the proceedings before the Arbitrator were wholly without jurisdiction and the Award given by the Arbitrator as well as its affirmation by the Appellate Authority is illegal and void. Against the order of this Court, the SLP preferred by the respondent - Society was dismissed by the Supreme Court. Thus, the order dated 07.10.1982 had become final between the parties.

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5. In pursuance of the order dated 07.10.1982 passed by this Court in Writ Petition No. 7779/1975, the petitioners’ father, Late Mahendra Lal Jaini, had filed a Civil Misc. Restitution Application under section 144 of CPC dated 23.11.1982 for restoration of possession from respondent - Society before the Civil Judge, Saharanpur, being Misc. Restitution Case No. 173/1982. The aforesaid restitution application was dismissed on 01.05.1992 for want of prosecution. Thereafter, Misc. Case No. 47/1992 was filed on 30.05.1992 for restoration of Misc. Restitution Case No. 173/1982, which too was dismissed for want of prosecution vide order dated 11.05.1993. For recalling the order dated 11.05.1993, Misc. Case No. 27/1993 was filed on 02.07.1993 for the restoration of Misc. Case No. 47/1992, which was rejected vide order dated 11.11.2014 after about 21 years of its filing by the First Additional Civil Judge (SD), Saharanpur. Aggrieved against the order dated 11.11.2014, the petitioners filed

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Civil Revision No. 157/2015 in the Court of District Judge, Saharanpur, which has been dismissed vide order dated 23.5.2019 by the 4^th Additional District Judge, Saharanpur. Hence, the present petition.

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6. Learned counsel for the petitioners submits that after a long litigation starting from 1965, the same was finally came to end in 1982 after dismissal of the SLP of the respondent – Society. He moved a restitution application, but, unfortunately, the same was dismissed in default on account of the non-appearance of the Advocate. The petitioners moved restoration applications thrice, but without considering the same in a true and prospective manner, the same were illegally and arbitrarily rejected and the same was affirmed by the revisional court. He further submits that for the fault of attorney/advocate, the petitioners cannot be penalized, particularly, when the order dated 07.10.1982 was passed in favor of the petitioners by this Court and confirmed by the Apex Court while dismissing the SLP of the respondent – Society, the said orders were duly intimated/communicated to the Executing Court by filing Restitution Application under section 144 of CPC for restoration of possession of valuable property of the petitioners. He further submits that the courts below did not consider that the petitioners shall suffer injustice even if there was default on the part of the Advocate in not appearing at the time of hearing before the Executing Court because no Court is empowered to shut-down the doors of justice for litigants. He further submits that the courts below were not justified in closing the opportunity of execution/restitution, particularly, when decree/order dated 07.10.1982 passed by this Court in favor of the petitioners. He further submits that Misc. Case No. 27 of 1993 remained pending for disposal for about 21 years just due to circumstantial reasons which were beyond the control of the petitioners. There was no fault on part of the petitioners. In support of his submissions, he has placed reliance on the

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judgements of the Apex Court in Satpal Singh Vs. Chunni Lal (since deceased) through LR's reported in (2009) 6 SCC 607 and G.P. Srivastava Vs. R.K. Raizada & others reported in 2000 (2) AWC 1294 (SC) and prays for allowing the petition.

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7. Per contra , learned counsel for the respondent vehemently opposed the prayer of the petitioners by submitting that the petitioner no. 1/3, being an Advocate, is well aware of the proceedings and with an intent to linger on the proceedings without any sufficient cause or justification, the matter was got dismissed in default thrice and therefore, the orders passed in the restoration applications rejecting the same and the order of the revisional court confirming the same are justified. He prays for dismissal of the petition.

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The Court has perused the records.

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9. In the present case, the litigation started since 1965 and travelled upto the Supreme Court and finally, settled in the year 1982 after dismissal of the SLP of the respondent – Society observing that the proceedings before the Arbitrator were wholly without jurisdiction and the Award given by the Arbitrator as well as its affirmation by the Appellate Authority was illegal and void. Thereafter, restitution application was moved, which has been rejected. The said restitution application could not be pressed for the fault of the lawyer and thereafter, the recall application was also rejected. The Legislature had enacted the provision for ‘restoration’ of ex-parte order in CPC just to give relief to the litigants and do justice on merits with the litigants. It is not a penal provision. No one should be denied justice without hearing on merits. Therefore, the provision of restoration must be liberally construed to do complete justice between the parties. In the present matter as no right of either party was to be decided by the Court, the restoration must be decided liberally just to give due effect and respect to the order of this Court passed in WP No.

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7779 of 1975, which was confirmed in SLP and not to shut the doors of justice for the petitioners. If the courts below were of the view that the matter being quite old, they could have allowed the recall applications by imposing reasonable costs upon the petitioners by holding or not holding them to be guilty of delay, if any, but under no circumstances, the doors of justice could have been closed; otherwise, the effect of the impugned orders would be to nullify the adjudication on merits done by this Court while deciding Writ Petition No. 7779 of 1975.

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10. Further, the Apex Court in a catena of decisions has taken the view that for the fault of a lawyer, the litigant should not suffer. The Apex Court in Satpal Singh (supra), in paragraph no. 6, has observed as under:-

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“In view of the above unforeseen events, the appellant could not appear before the Court, on the day when the appeal had been fixed for hearing. The appellant had also stated that it was the duty of the counsel to appear in the matter when it was listed for hearing and also to intimate his client about the outcome of the appeal. It was further stated, that his learned counsel for the reason best known to him also did not appear on the date fixed for hearing of the appeal nor he intimated about its dismissal of the appeal for default.”

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11. In view of the aforesaid facts & circumstances of the case, the impugned orders cannot be sustained. The petition is allowed. The impugned orders dated 23.05.2019 passed by the Additional District Judge, Court No. 4, Saharanpur in Civil Revision No. 157 of 2012, 11.11.2014 passed by the First Additional Civil Judge (Senior Division), Saharanpur in Misc. Case No. 27 of 1993, 11.05.1993 passed in Misc. Case No. 47 of 1992 as well as 01.05.1992 passed in Misc. Case No. 173 of 1982 are hereby set aside.

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12. Civil Misc. Restitution Case No. 173/1982 is restored to its original number, subject to deposit of Rs. 5,000/- (Rs. Five Thousand Only) as cost by the petitioners before the court below within a period of 15 days from today.

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13. The court below shall consider & decide restitution application under section 144 CPC, i.e., Misc. Case No. 173 of 1982, in accordance with law, on its own merits, expeditiously and preferably within a period of four months from the date of receipt of certified copy of this order, but certainly after giving opportunity to the parties concerned.

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Order Date :- 25 / 08/2022 Amit Mishra

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Digitally signed by AMIT KUMAR MISHRA Date: 2022.08.26 14:05:01 IST Reason: Location: High Court of Judicature at Allahabad

Mahendra Lal Jaini (Since Deceased) and 12 Others v. the Praduman Nagar Co- Operative Housing Society Ltd. and Another

Case brief

What is this about?

What did the court decide?

Mahendra Lal Jaini (Since Deceased) and 12 Others v. the Praduman Nagar Co- Operative Housing Society Ltd. and Another

Case brief

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