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Heard learned counsel for the petitioner. Notice on behalf of the respondents No.1 to 3 has been accepted by the office of Chief Standing Counsel. Shri Ram Pheran Dwivedi, learned counsel has put in appearance on behalf of the private-respondent No.5 on caveat. Under challenge is the order dated 07.08.2024 passed by the respondent No.3, whereby he has accepted the application moved by the private-respondent No.5 purportedly under Order 9 Rule 13 CPC seeking recall and setting aside of the preliminary decree passed in a suit for division of land holding under Section 176 of the U.P. Z.A. & L.R. Act, 1950. The said order dated 07.08.2024 was assailed by the petitioner by filing a revision which also does not find favour with the respondent No.2 and in the aforesaid circumstances, the petitioner has come up before this Court by means of the instant petition. The submission is that in a suit for division of land holding, the private-respondent No.5 had put in appearance and had filed his written statement. It is urged that the private-respondent No.5 had knowledge of the proceedings and thereafter once the final decree was passed, thereafter, he moved an application that too after about a year which does not disclose sufficient cause and for the said reasons, the application was not maintainable. It is further submitted that the respondent No.3 has committed an error in allowing the application under Order 9 Rule 13 CPC insofar as the Plot No.67. Either the entire order would have been set aside but it was not open for the respondent No.3 to set aside part of the order only relating to Plot No.67. It is also submitted that the decree had been passed after notice to the parties and the same cannot be treated as an ex-parte decree, therefore, the application under Order 9 Rule 13 CPC was not maintainable in the first place and for the aforesaid reasons, the order impugned is bad and deserves to be set aside. Having considered the aforesaid submissions and from a perusal of the material on record, it appears that the petitioner had filed a suit seeking division of land holding in respect of Plot No.85. It was further pleaded that the parties on the basis of an oral settlement were already in possession of their respective rights and areas and accordingly the division was only in respect of Plot No.85. The record indicates that by means of the order dated 09.02.2016, a preliminary decree was passed insofar as the Plots No.67 and 235 are concerned. The said order, which is brought on record as Annexure No.4, does not relate to Plot No.85 for which the suit had been filed. Be that as it may, at the time when the final decree proceedings were initialed, it is alleged that the private-respondent No.5 thereafter had filed his written statement and the final decree came to be passed on 05.02.2020. It is in the aforesaid backdrop that the private-respondent No.5 on 04.10.2021 moved an application under Order 9 Rule 13 CPC seeking recall of the order dated 03.02.2020 whereby the final decree proceedings were allowed. Against the said application for recall, the petitioner had filed his objections, inter-alia, alleging that the private-respondent No.5 was aware of the proceedings, accordingly, the decree was not ex-parte and moreover the private-respondent No.5 has only raised submissions regarding the Plot No.67 not with the other plots and for the said reasons also the application under Order 9 Rule 13 CPC could not have been allowed only for part of the plots which was involved in the suit. Taking note of the aforesaid submissions, this Court finds that insofar as the suit filed by the petitioner is concerned, it was only in respect of Plot No.85. There does not appear to be any finding given by the Court insofar as the Plot No.85 is concerned rather the findings are in respect of Plots No.67 and 235. While passing the preliminary decree, it was noticed by the Court that the private-respondent No.5 was not heard nor he has put in appearance. Even while challenging the final decree reference has been taken to the written statement filed by the private-respondent No.5, but that is also disputed by the private-respondent No.5 as he alleged that the proceedings have been manipulated. The Courts below have further noticed that it was contended by the petitioner that there was a settlement between the parties and the Lekhpal of the area had also prepared the scheme of partition after recording the agreement between the parties, however, there was no such statement given by the Lekhpal. In absence of such statement, the Court found that it was apparent that opportunity of hearing was not granted to the private-respondent No.5 and after finding that the delay has been sufficiently explained, it set aside the order directing the parties to contest the proceedings on merit. Since, the discretion has been exercised by the authorities for the purposes of doing substantive justice and the rights have to be determined so far as possible by permitting the parties to contest the proceedings on merits, such discretionary order does not appear to be influenced by any patent errors which may persuade this Court to entertain the petition in exercise of powers under Article 226 of the Constitution of India. Since, the petitioner has right to contest the proceedings and get the matter decided on merits, accordingly, the Court is not inclined to entertain the instant petition, however, leaving it open for the parties to contest the proceedings before the Court concerned. However, it is provided that the respondent No.3 shall have after affording full opportunity of hearing to the parties but without granting unnecessary adjournment to either of the parties shall decide the matter as expeditiously as possible preferably within a period of three months from the date a certified copy of this order is placed before the Court concerned. With the aforesaid observations, the petition is disposed of. Order Date :- 6.1.2025 Rakesh/-
Heard learned counsel for the petitioner. Notice on behalf of the respondents No.1 to 3 has been accepted by the office of Chief Standing Counsel. Shri Ram Pheran Dwivedi, learned counsel has put in appearance on behalf of the private-respondent No.5 on caveat. Under challenge is the order dated 07.08.2024 passed by the respondent No.3, whereby he has accepted the application moved by the private-respondent No.5 purportedly under Order 9 Rule 13 CPC seeking recall and setting aside of the preliminary decree passed in a suit for division of land holding under Section 176 of the U.P. Z.A. & L.R. Act, 1950. The said order dated 07.08.2024 was assailed by the petitioner by filing a revision which also does not find favour with the respondent No.2 and in the aforesaid circumstances, the petitioner has come up before this Court by means of the instant petition. The submission is that in a suit for division of land holding, the private-respondent No.5 had put in appearance and had filed his written statement. It is urged that the private-respondent No.5 had knowledge of the proceedings and thereafter once the final decree was passed, thereafter, he moved an application that too after about a year which does not disclose sufficient cause and for the said reasons, the application was not maintainable. It is further submitted that the respondent No.3 has committed an error in allowing the application under Order 9 Rule 13 CPC insofar as the Plot No.67. Either the entire order would have been set aside but it was not open for the respondent No.3 to set aside part of the order only relating to Plot No.67. It is also submitted that the decree had been passed after notice to the parties and the same cannot be treated as an ex-parte decree, therefore, the application under Order 9 Rule 13 CPC was not maintainable in the first place and for the aforesaid reasons, the order impugned is bad and deserves to be set aside. Having considered the aforesaid submissions and from a perusal of the material on record, it appears that the petitioner had filed a suit seeking division of land holding in respect of Plot No.85. It was further pleaded that the parties on the basis of an oral settlement were already in possession of their respective rights and areas and accordingly the division was only in respect of Plot No.85. The record indicates that by means of the order dated 09.02.2016, a preliminary decree was passed insofar as the Plots No.67 and 235 are concerned. The said order, which is brought on record as Annexure No.4, does not relate to Plot No.85 for which the suit had been filed. Be that as it may, at the time when the final decree proceedings were initialed, it is alleged that the private-respondent No.5 thereafter had filed his written statement and the final decree came to be passed on 05.02.2020. It is in the aforesaid backdrop that the private-respondent No.5 on 04.10.2021 moved an application under Order 9 Rule 13 CPC seeking recall of the order dated 03.02.2020 whereby the final decree proceedings were allowed. Against the said application for recall, the petitioner had filed his objections, inter-alia, alleging that the private-respondent No.5 was aware of the proceedings, accordingly, the decree was not ex-parte and moreover the private-respondent No.5 has only raised submissions regarding the Plot No.67 not with the other plots and for the said reasons also the application under Order 9 Rule 13 CPC could not have been allowed only for part of the plots which was involved in the suit. Taking note of the aforesaid submissions, this Court finds that insofar as the suit filed by the petitioner is concerned, it was only in respect of Plot No.85. There does not appear to be any finding given by the Court insofar as the Plot No.85 is concerned rather the findings are in respect of Plots No.67 and 235. While passing the preliminary decree, it was noticed by the Court that the private-respondent No.5 was not heard nor he has put in appearance. Even while challenging the final decree reference has been taken to the written statement filed by the private-respondent No.5, but that is also disputed by the private-respondent No.5 as he alleged that the proceedings have been manipulated. The Courts below have further noticed that it was contended by the petitioner that there was a settlement between the parties and the Lekhpal of the area had also prepared the scheme of partition after recording the agreement between the parties, however, there was no such statement given by the Lekhpal. In absence of such statement, the Court found that it was apparent that opportunity of hearing was not granted to the private-respondent No.5 and after finding that the delay has been sufficiently explained, it set aside the order directing the parties to contest the proceedings on merit. Since, the discretion has been exercised by the authorities for the purposes of doing substantive justice and the rights have to be determined so far as possible by permitting the parties to contest the proceedings on merits, such discretionary order does not appear to be influenced by any patent errors which may persuade this Court to entertain the petition in exercise of powers under Article 226 of the Constitution of India. Since, the petitioner has right to contest the proceedings and get the matter decided on merits, accordingly, the Court is not inclined to entertain the instant petition, however, leaving it open for the parties to contest the proceedings before the Court concerned. However, it is provided that the respondent No.3 shall have after affording full opportunity of hearing to the parties but without granting unnecessary adjournment to either of the parties shall decide the matter as expeditiously as possible preferably within a period of three months from the date a certified copy of this order is placed before the Court concerned. With the aforesaid observations, the petition is disposed of. Order Date :- 6.1.2025 Rakesh/-