Dismissed

Dharm Dev v. State of U.P. Thru. Prin. Secy., Deptt. of Revenue, Lucknow and Others

Allahabad HC6 Aug 2024WRIC/6757/2024

Case brief

AI extract

What is this about?

The Court rejected the petitioner's revision challenging the dismissal of a revisional application filed against an Order 7 Rule 11 CPC application. While agreeing the dismissal based on interlocutory nature was legally flawed, the Court held there was no merit in the underlying grounds and directed the trial court to decide maintainability as a preliminary issue.

What did the court decide?

Petition dismissed. Costs made easy. Trial Court to decide maintainability as preliminary issue after evidence.

Dharm Dev vs State of U.P. Thru. Prin. Secy., Deptt. of… — Land Acquisition | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:54126

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Court No. - 8

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Case :- WRIT - C No. - 6757 of 2024

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Petitioner :- Dharm Dev Respondent :- State Of U.P. Thru. Prin. Secy., Deptt. Of Revenue, Lucknow And Others Counsel for Petitioner :- Rajeev Shukla,Prashant Chaurasia Counsel for Respondent :- C.S.C.,Dilip Kumar Pandey,Salma Bano,Shresth Agarwal

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Hon'ble Jaspreet Singh,J .

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Heard learned counsel for the petitioner. Notice on behalf of respondent nos. 1 to 4 has been accepted by the office of the learned Chief Standing Counsel. Sri Dilip Kumar Pandey, learned counsel has accepted notice on behalf of respondent no. 5-Gaon Sabha. Sri Shrestha Agarwal, learned counsel has put in appearance on behalf of the respondent no. 8 on caveat.

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The petitioner has approached this Court assailing the order dated 02.07.2024 passed by the Additional Commissioner (Administration), Lucknow whereby the revision of the petitioner has been dismissed observing that the order impugned is interlocutory in nature and the revision is not maintainable.

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The submission of the learned counsel for the petitioner is that the aforesaid observation of the Revisional Court is per se bad. It is urged that the private respondents had initiated proceeding under Section 144 of the U.P. Revenue Code, 2006. The petitioner being the defendant no. 10 therein had filed an Application under Order 7 Rule 11 C.P.C. stating that the suit of the petitioner was barred by law.

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It is urged that this aspect was considered by the Trial Court, however, it did not find favour, consequently, the petitioner preferred a Revision before the Additional Commissioner and at the admission stage itself the revision was dismissed on the ground that it was filed against an interlocutory order.

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The submission of learned counsel for the petitioner is that from the bare perusal of the plaint, a copy of which has been brought on record as Annexure No.3, in paragraph 7 and 8 it has been indicated that the land of the plaintiff had been taken over in ceiling proceedings and lease deeds have also been executed in favour of the said allotees. The order passed by the Ceiling

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Authorities has not been challenged and another fact upon which it was urged that the suit was not maintainable was the ground that in the earlier round of consolidations, the private respondents did not raise any objections and as such they were prevented from raking up the issue by filing a suit under Section 144 as it would be barred by Section 49 of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as "the UPCH Act of 1953).

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It is urged that both the grounds have not been appropriately considered and it was substantive provisions in terms whereof the plaint ought to have been rejected which has not been done and the Revisional Court has also refused to intervene treating it to be an interlocutory order, hence, bad in law.

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The Court has heard the learned counsel for the petitioner and also perused the material available on record.

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It will be relevant to notice the scope of Order 7 Rule 11 C.P.C. as held by the Apex Court in Sopan Sukhdeo Sable and Others Vs. Assistant Charity Commissioner and others; 2004 (3) SCC 137, Popat and Kotecha Property Vs. State Bank of India Staff Association; 2005 (7) SCC 510, Saleem Bhai and Others Vs. State of Mahrashtra and Others; 2003 (1) SCC 557.

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Apparently, it is not disputed that the petitioner herein is the defendant no. 10 in the suit. The application under Order 7 Rule 11 C.P.C. has been filed wherein primarily two objections have been taken one in respect of the applicability of Section 49 of the UPCH Act of 1953 and the other in respect of proceedings which were initiated under the Uttar Pradesh Imposition of Ceiling on Land Holdings Act, 1960.

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In so far as the aforesaid plea of Section 49 of the Act of 1953 is concerned, it is a mixed question of law and fact which can be considered after the parties lead evidence. Apparently, from the bare perusal of the plaint, there is nothing to indicate as to in what circumstances, there could be a bar in terms of Section 49 of the UPCH Act of 1953.

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While considering the Application under Order 7 Rule 11 C.P.C. it is the plaint averments alone and the documents filed by the plaintiff which are to be seen. There is nothing on record to indicate that from the bare and meaningful reading of the plaint or the documents filed by the plaintiff any inference could be drawn that the suit filed by the private respondent would be barred by Section 49 of the UPCH Act of 1953.

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Moreover, in so far as the ceiling proceedings are concerned, it

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is the averment in the plaint that there has been no proper orders passed by the Ceiling Authorities and thus the petitioner seeks a declaration in so far as his rights are concerned. Whether the orders passed by the Ceiling Authorities have been assailed or not or whether they have been validly passed or not is the subject matter of evidence which is to be considered upon framing of issues and after the parties have been granted an opportunity to lead evidence.

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In so far as the aforesaid plea that the Additional Commissioner has rejected the revision on the ground that it is an interlocutory order, to that extent, the submission of learned counsel for the petitioner is correct, inasmuch as, the decision rendered by a court rejecting an Application under Order 7 Rule 11 C.P.C. is definitely revisable as it relates to the jurisdiction of a Court. Even otherwise if the application is allowed then in terms of Section 2 (2) of C.P.C. as amended in the year 1976, such an order is within the ambit of the word 'decree' as defined and such an order is appealable in terms of Section 96 C.P.C. and in terms of Section 331 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950 and now in terms of Section 207 of the U.P. Revenue Code, 2006.

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In this view of the matter even though the Court agrees with the submissions of learned counsel for the petitioner as far as dismissal of the revision on the ground of being interlocutory order being bad is concerned but for the reasons as disclosed above, this Court does not find that there is any merit in the grounds of Order 7 Rule 11 C.P.C. being attracted to persuade this Court to intervene. Since the parties already have adequate opportunity of contesting the matter before the Trial Court, it is provided that in case if the petitioner raises such a plea in his written statement, the court concerned shall after framing appropriate issues shall endevour to decide the same as a preliminary issue after affording opportunity to lead evidence in terms of Order 14 Rule 2 (2) C.P.C.

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It is made clear that any observations made by this Court shall not come in the way of the court concerned while trying the matter on its merit.

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With the aforesaid, the petition is dismissed . Costs are made easy.

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O rder Date :- 6.8.2024 Asheesh

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Digitally signed by :- ASHEESH KUMAR High Court of Judicature at Allahabad, Lucknow Bench

Dharm Dev v. State of U.P. Thru. Prin. Secy., Deptt. of Revenue, Lucknow and Others

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Dharm Dev v. State of U.P. Thru. Prin. Secy., Deptt. of Revenue, Lucknow and Others

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