Kripa Shankar Pandey Vs Pramod Kumar Pandey and others

Neutral Citation No. - 2025:AHC-LKO:15605

Court No. - 5

Case :- CIVIL REVISION No. - 1 of 2025

Revisionist :- Kripa Shankar Pandey Opposite Party :- Pramod Kumar Pandey And Others Counsel for Revisionist :- Sudhanshu Chauhan,Devendra Nautiyal,Jai Prakash Mishra Counsel for Opposite Party :- Shyam Ji Vidyawarid Shukla,Anshuman Pandey

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Hon'ble Abdul Moin,J.

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Heard Sri Sudhanshu Chauhan, learned counsel for the revisionist and Sri Shwetank, Advocate holding brief of Sri Shyam Ji Vidyawarid Shukla, learned counsel for the respondent no. 1.

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No body appears on behalf of the other respondents despite the name of Sri Anshuman Pandey, Advocate being indicated from the side of respondents.

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The Court proceeds to hear and decide the matter finally considering the earlier order of this Court dated 27.02.2025 which for the sake of convenience is reproduced below:-

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"List has been revised. No one has appeared on behalf of opposite parties while learned counsel for revisionist is present. Objections of only opposite party no.2 have been uploaded till date.

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As per office report dated 19.02.2025, opposite parties no.1 & 3 have already been served through the Judge Small Causes, Lucknow. Service upon all opposite parties is therefore complete.

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In view thereof, list this case on 04.03.2025, as fresh.

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It is made clear that the revision would be heard on its merits on the next date of listing even in case opposite party do not appear."

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Under challenge is the order dated 08.11.2024 passed by the learned Judge, Small Causes Court, Lucknow in Misc. Case No. 103 of 2023 Inre; Pramod Kumar Pandey and Ors Vs. Kripa Shankar Pandey. By the said order, the learned trial Court has allowed the application filed by the respondents under Section 151 of the Code of Civil Procedure and has set aside the order dated 04.10.2023.

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Bereft of unnecessary details, the facts of the case are that a suit was filed by all the respondents herein before the learned Trial Court

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registered as Original Suit No. 647 of 2017 Inre; Pramod Kumar Pandey and Ors Vs. Kripa Shankar Pandey.

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The learned Trial Court had passed an order dated 26.05.2022, a copy of which is annexure 3 to the writ petition whereby after hearing on issues no. 2 & 3, the learned trial Court was of the view that the suit would be maintainable for the specific performance of contract for which purpose, the Court fee was not sufficient and consequently, the plaintiffs were required to amend their suit and to deposit the requisite Court fee.

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For the said purpose, the matter was listed on 08.08.2022 for submission of the report of the Munsarim/objections.

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It is contended that despite ample opportunities having been given by the learned trial Court, as emerges from a perusal of the typed copy of the order sheets which have cumulatively been filed as annexure 4 to the revision, the requisite Court fee was not paid. It has also been indicated that on 04.07.2023, the learned trial Court had granted a last opportunity to the plaintiffs to file the Court fee. Despite that, the matter having remain pending for about one and half years yet the Court fee was not paid and neither was the amendment application filed.

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When the matter was thereafter listed on 04.10.2023, the learned trial Court was of the view that as the order dated 26.05.2022 has not been complied with and despite last opportunity having also been accorded to the plaintiffs, neither the amendment application has been filed nor the Court fees has been filed consequently, the suit itself was dismissed for non compliance of the order dated 26.05.2022.

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The plaintiffs being aggrieved filed an application under Section 151 of the CPC for recall of the said order.

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An objection was raised by the revisionist herein that against the order dated 04.10.2023, an appeal under Section 96 of the CPC would lie.

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The learned trial Court thereafter vide order impugned dated 08.11.2024 has allowed the application filed under Section 151 of the CPC and has restored the case to its original number.

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Being aggrieved, the instant revision has been filed.

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Argument of the learned counsel for the revisionists is that the order dated 04.10.2023 whereby the suit itself was dismissed for non compliance of the order dated 26.05.2022 would fall within the ambit of Order 7 Rule 11 (c) of the CPC and consequently, it is only an appeal which would lie under Section 96 of the CPC considering the provisions of sub Section (2) of Section 2 of the CPC.

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In this regard, reliance has been placed on the judgments of the Apex Court in the case of My Palace Mutually Aided Co-operative Society Vs. B. Mahesh and Ors- 2022 SCC OnLine SC 1063, Sayyed Ayaz Ali Vs. Prakash G. Goyal and Ors- (2021) 7 SCC 456 as well as judgment of this Court in the case of Krishna Chand Tiwari and Ors Vs. Satish Chand Tiwari and Ors- (2016) 3 JCLR 562 (All).

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Placing reliance on the aforesaid judgments, the argument of the learned counsel for the revisionists is that the learned trial Court has patently erred in allowing the application under Section 151 of the CPC as it failed to appreciate that the order dated 04.10.2023 which was passed for non compliance of the order dated 26.05.2023 would fall within the ambit of Order 7 Rule 11 (c) of the CPC and consequently, the application under Section 151 of the CPC was not be maintainable.

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Sri Shwetank, Advocate holding brief of Sri Shyam Ji Vidyawarid Shukla, learned counsel for the respondent no. 1 has argued that a perusal of the order dated 26.05.2022 would indicate that there was no time period fixed in the said order and consequently, the said order would not fall within the ambit of being an order under Order 7 Rule 11 of the CPC which aspect of the matter has been considered by this Court in the case of Firm M/S Devesh Kumar Viresh Kumar, Aligarh and Ors Vs. 5th Addl. District Judge, Aligarh and OrsAIR 1981 ALL Page 15.

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Placing reliance on the aforesaid judgment, the argument is that it is only in case the learned trial Court while passing the order dated 26.05.2022 would have fixed a time frame which would have rendered the said order to be an order under Order 7 Rule 11 (c) of the CPC and consequently, once no time had been fixed in the aforesaid order as such, it was open for the plaintiff to file an application under Section 151 CPC considering the order dated 04.10.2023 whereby the suit itself had been dismissed for non compliance of the order dated 26.05.2010.

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Further argument is that the plaint has also been amended subsequent to the order dated 04.10.2023 and that the Court fee has also been paid.

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Heard the learned counsel appearing on behalf of the contesting parties and perused the records.

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From a perusal of records, it emerges that after the plaintiffs had filed a suit before the learned Trial Court, the learned trial Court vide order dated 26.05.2022 while deciding the issues no. 2 & 3 was of the view that the suit would be maintainable for the specific performance of contract for which purpose, the Court fee was not sufficient and

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consequently, the plaintiffs were required to amend their suit and to deposit the requisite Court fee and consequently, the matter had been fixed on 08.08.2022 for the submission of the report of the Munsarim/objections.

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Admittedly, the report of the Munsarim was not filed meaning thereby that the Court fee and the amendment, which were required to be done by the plaintiffs, was never done.

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Despite various last opportunities that had been granted by the learned trial Court, the plaintiffs failed to file the amendment application and even the Court fee in terms of the order the Court dated 26.05.2022, as such the learned trial Court vide order dated 04.10.2023 considering that the order dated 26.05.2022 had not been complied with, dismissed the suit.

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The plaintiffs being aggrieved by the said order, filed an application under Section 151 of the CPC which was opposed by the revisionists by contending that the order dated 26.05.2022 would fall within the ambit of being an order under Order 7 Rule 11 (c) of the CPC and consequently, an application under Section 151 would not be maintainable rather the plaintiffs had to file an appeal under Section 96 of the CPC.

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The learned Trial Court placing reliance on the judgment of this Court in the case of Firm M/S Devesh Kumar Viresh Kumar, Aligarh and Ors (supra) has held that an application under Section 151 of the CPC would be maintainable as no time frame had been fixed in the order of the Court dated 26.05.2022.

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Thus, the crux of the issue is as to whether any time had been fixed in the order dated 26.05.2022 so as to render the said order to be within the ambit of an order under Order 7 Rule 11 (c) of the CPC.

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Perusal of the order dated 26.05.2022 would indicate that after the learned trial Court had required the plaintiffs to file an amendment application as well as the Court fee, the matter had been fixed on 08.08.2022 for the submission of the report of the Munsarim.

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Obviously, the report of the Munsarim was required in order to indicate that the direction as issued by the learned trial Court dated 26.05.2022 i.e for filing of an amendment application and deposit of the Court fee was complied with or not meaning thereby that the amendment application was to be filed and the Court fee was to be deposited by 08.08.2022. Nothing further prima facie emerges from a perusal of the said order. Thus, the argument of the learned counsel for the respondent no. 1 that no specific time frame had been fixed in the order dated 26.05.2022 is patently fallacious.

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Considering this as well as the fact that repeated opportunities had been given to the plaintiffs to comply with the order dated 26.05.2022 which, as already indicated above was for the purpose of filing of an amendment application and deposit of the Court fee, the compliance was not made consequently, the learned trial Court vide order dated 04.10.2023 dismissed the suit.

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Considering the aforesaid, it is thus apparent that the order dated 26.05.2022 read with the order dated 04.10.2023 would prima facie fall within the ambit of an order under Order 7 Rule 11 (c) of the CPC.

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However, this aspect of the matter has not been considered by the learned trial Court while passing the order impugned dated 08.11.2024.

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Keeping in view the aforesaid discussion, the revision is allowed. The order dated 08.11.2024 passed by the learned trial Court is set aside.

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The matter is remitted to the learned trial Court to pass a fresh order on the application filed by the plaintiffs after considering the objections as raised by the revisionists being uninfluenced by any of the observations as have been made by this Court which observations have only been made for the purpose of deciding the instant revision.

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Let an order in this regard be passed after hearing all the parties concerned within a period of six weeks from the date of receipt of a certified copy of this order.

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Order Date :- 17.3.2025 Pachhere/-

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Kripa Shankar Pandey v. Pramod Kumar Pandey and others

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Kripa Shankar Pandey v. Pramod Kumar Pandey and others

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