Ali Hasan and others v. Mainuddin and others) and

disposed of by me by order dated 22.02.2023 with a direction to Sub-Divisional Officer, Padrauna, District Kushinagar to decide the restoration application dated 26.07.2021 (later on corrected as

26.07.2001) and stay application dated 06.04.2017 expeditiously within a period of three months.

4. When the aforesaid writ petition was decided, the factum of change of Tehsil was not brought to the notice of the Court and learned counsel for the private respondent, who was petitioner in the said writ petition, also submits that he was not aware of the fact of change of Tehsil, Padrauna to newly created Tehsil Khadda at the relevant point of time.

5. It appears from record that when, pursuant to the order of this Court, the matter was taken up by SDO, Padrauna, an application was filed by the petitioner on 06.07.2023 stating therein that a new Tehsil Khadda has been carved out and the records of all cases pertaining to that Tehsil have been transmitted to SDO, Khadda, however, only one file giving rise to the present petition is pending at Tehsil Padrauna. A prayer was made to transmit the record to the court of SDO, Khadda.

6. On the aforesaid application, SDO, Padrauna passed an order dated 10.04.2024 which reveals that while hearing the application dated 06.07.2023, the recall application dated 27.07.2023 was also heard and 23.04.2024 was fixed for disposal of both the applications.

7. It appears that on the date so fixed, the applications could not be decided but the same were taken up on a later date, i.e. on

02.05.2024, on which date, while allowing restoration application dated 26.07.2001/ 27.07.2001, setting aside the order dated

23.04.2001, the case was restored to its original number. Thereafter, the SDO, Padrauna observed that the file be sent to SDO, Khadda for disposal on merits with further direction to both the parties to appear before the SDO, Khadda on 23.05.2024.

8. Challenging the order dated 02.05.2024, the petitioner filed a revision before the Commissioner, which has been dismissed by order dated 03.08.2024.

9. Learned Senior Counsel submits that a jurisdictional error has been committed by the SDO, Padrauna to the effect that once an application for transmission of record from the said Tehsil to Tehsil Khadda was moved, simultaneous consideration of the said application along with pending recall applications was not the appropriate mode and manner for exercise of jurisdiction and once the SDO, Padrauna himself, after allowing the recall application, transmitted the file to SDO, Khadda, it reflects that he had no jurisdiction to decide the matter and, therefore, the orders impugned are not sustainable.

10. Shri Anubhav Sinha, learned counsel for the private respondent submits that the reason for allowing the recall application is that the decree was obtained fraudulently and since the time limit fixed by this Court while deciding Writ-C No. 3172 of 2023 was expiring, in order to avoid contempt of High Court's order, the matter was decided.

11. As regards plea of jurisdiction, submission is that in the memo of revision filed against the order dated 02.05.2025, no such plea was raised and, therefore, in view of Section 21 CPC, the said plea cannot be permitted to be raised before this Court for the first time. He further submits that the matter being quite old and the original proceedings having been revived, a direction may be issued for deciding the same expeditiously.

12. Having considered the submissions made, this Court finds that creation of new Tehsil Khadda and falling of the property in dispute in the said Tehsil during the course of time is an admitted fact. The said situation was not brought to the notice of the Court while deciding Writ-C No. 3172 of 2023 and, therefore, a general order of deciding the matter expeditiously was passed.

13. The necessity to transmit record arose subsequent to passing of the order passed by this Court, i.e. in July, 2023 when an application was moved by the petitioner for the said purpose. Though this Court finds that the SDO, Padrauna did not commit any error in taking up the application simultaneously along with recall application, however, once he was satisfied that he had no jurisdiction to decide the matter and, ultimately, transmitted the file to SDO, Khadda, the order allowing recall application itself becomes without jurisdiction.

14. As far as the argument based upon Section 21 CPC, though it is true that out of three kinds of jurisdiction, i.e. pecuniary, territorial and inherent lack, the objection qua pecuniary and territorial jurisdiction has to be raised at the first instance, the argument on that line would not be read in favour of the private respondent, inasmuch as it is the application dated 06.07.2023 which was moved for the very said purpose and, therefore, the petitioner took up the plea at the very first instance based upon creation of new Tehsil.

15. Merely because specific ground was not taken in the memo of revision in that direction, the same does not mean that, at this stage, this Court cannot consider the plea particularly when disposal of the application dated 06.07.2023 was made along with recall application and prayer sought to be claimed by the said application was granted but after allowing recall application to which the SDO, Padrauna had no jurisdiction.

16. Considering the peculiar facts and circumstances of the case and the fact that the matter is quite old and, further, it is the SDO, Khadda who has jurisdiction not only to hear the recall application, this Court is of the view that the order dated 02.05.2024 suffers from lack of territorial jurisdiction.

17. The writ petition is, accordingly, allowed.

18. The orders impugned dated 03.08.2024 passed by Additional Commissioner (Administration) (IV), Gorakhpur Division Gorakhpur in Case No. 961 of 2024 (Computerized Case No. C202405000000961) (Ali Hasan and others Vs. Mainuddin and others) and 02.05.2024 passed by Sub-Divisional Officer, Padrauna, Kushinagar in Case No. 280/16/03/2001/200-2001 (Computerized Case No. T201605440106362) (Ali Hasan Vs. Hazrat) are quashed to the extent of allowing the recall application.

19. The direction to transmit the record to Tehsil Khadda shall remain intact.

20. The Collector, Kushinagar shall ensure that the entire file along with recall application is transmitted forthwith to SDO, Khadda who shall take up the matter on 13.08.2025.

21. Both the parties, who are duly represented by their learned counsel, shall appear before the SDO, Khadda on 13.08.2025.

22. The SDO, Khadda shall hear both the parties and shall decide the recall application by the end of September, 2025 on merits.

23. It is made clear that this Court has not adjudicated upon the merits of the recall application and the same shall be considered in accordance with law.

24. Registrar (Compliance) is directed to send a copy of this order to Collector, Kushinagar within a week for compliance. Order Date :- 24.7.2025 AKShukla/-

disposed of by me by order dated 22.02.2023 with a direction to Sub-Divisional Officer, Padrauna, District Kushinagar to decide the restoration application dated 26.07.2021 (later on corrected as

26.07.2001) and stay application dated 06.04.2017 expeditiously within a period of three months.

4. When the aforesaid writ petition was decided, the factum of change of Tehsil was not brought to the notice of the Court and learned counsel for the private respondent, who was petitioner in the said writ petition, also submits that he was not aware of the fact of change of Tehsil, Padrauna to newly created Tehsil Khadda at the relevant point of time.

5. It appears from record that when, pursuant to the order of this Court, the matter was taken up by SDO, Padrauna, an application was filed by the petitioner on 06.07.2023 stating therein that a new Tehsil Khadda has been carved out and the records of all cases pertaining to that Tehsil have been transmitted to SDO, Khadda, however, only one file giving rise to the present petition is pending at Tehsil Padrauna. A prayer was made to transmit the record to the court of SDO, Khadda.

6. On the aforesaid application, SDO, Padrauna passed an order dated 10.04.2024 which reveals that while hearing the application dated 06.07.2023, the recall application dated 27.07.2023 was also heard and 23.04.2024 was fixed for disposal of both the applications.

7. It appears that on the date so fixed, the applications could not be decided but the same were taken up on a later date, i.e. on

02.05.2024, on which date, while allowing restoration application dated 26.07.2001/ 27.07.2001, setting aside the order dated

23.04.2001, the case was restored to its original number. Thereafter, the SDO, Padrauna observed that the file be sent to SDO, Khadda for disposal on merits with further direction to both the parties to appear before the SDO, Khadda on 23.05.2024.

8. Challenging the order dated 02.05.2024, the petitioner filed a revision before the Commissioner, which has been dismissed by order dated 03.08.2024.

9. Learned Senior Counsel submits that a jurisdictional error has been committed by the SDO, Padrauna to the effect that once an application for transmission of record from the said Tehsil to Tehsil Khadda was moved, simultaneous consideration of the said application along with pending recall applications was not the appropriate mode and manner for exercise of jurisdiction and once the SDO, Padrauna himself, after allowing the recall application, transmitted the file to SDO, Khadda, it reflects that he had no jurisdiction to decide the matter and, therefore, the orders impugned are not sustainable.

10. Shri Anubhav Sinha, learned counsel for the private respondent submits that the reason for allowing the recall application is that the decree was obtained fraudulently and since the time limit fixed by this Court while deciding Writ-C No. 3172 of 2023 was expiring, in order to avoid contempt of High Court's order, the matter was decided.

11. As regards plea of jurisdiction, submission is that in the memo of revision filed against the order dated 02.05.2025, no such plea was raised and, therefore, in view of Section 21 CPC, the said plea cannot be permitted to be raised before this Court for the first time. He further submits that the matter being quite old and the original proceedings having been revived, a direction may be issued for deciding the same expeditiously.

12. Having considered the submissions made, this Court finds that creation of new Tehsil Khadda and falling of the property in dispute in the said Tehsil during the course of time is an admitted fact. The said situation was not brought to the notice of the Court while deciding Writ-C No. 3172 of 2023 and, therefore, a general order of deciding the matter expeditiously was passed.

13. The necessity to transmit record arose subsequent to passing of the order passed by this Court, i.e. in July, 2023 when an application was moved by the petitioner for the said purpose. Though this Court finds that the SDO, Padrauna did not commit any error in taking up the application simultaneously along with recall application, however, once he was satisfied that he had no jurisdiction to decide the matter and, ultimately, transmitted the file to SDO, Khadda, the order allowing recall application itself becomes without jurisdiction.

14. As far as the argument based upon Section 21 CPC, though it is true that out of three kinds of jurisdiction, i.e. pecuniary, territorial and inherent lack, the objection qua pecuniary and territorial jurisdiction has to be raised at the first instance, the argument on that line would not be read in favour of the private respondent, inasmuch as it is the application dated 06.07.2023 which was moved for the very said purpose and, therefore, the petitioner took up the plea at the very first instance based upon creation of new Tehsil.

15. Merely because specific ground was not taken in the memo of revision in that direction, the same does not mean that, at this stage, this Court cannot consider the plea particularly when disposal of the application dated 06.07.2023 was made along with recall application and prayer sought to be claimed by the said application was granted but after allowing recall application to which the SDO, Padrauna had no jurisdiction.

16. Considering the peculiar facts and circumstances of the case and the fact that the matter is quite old and, further, it is the SDO, Khadda who has jurisdiction not only to hear the recall application, this Court is of the view that the order dated 02.05.2024 suffers from lack of territorial jurisdiction.

17. The writ petition is, accordingly, allowed.

18. The orders impugned dated 03.08.2024 passed by Additional Commissioner (Administration) (IV), Gorakhpur Division Gorakhpur in Case No. 961 of 2024 (Computerized Case No. C202405000000961) (Ali Hasan and others Vs. Mainuddin and others) and 02.05.2024 passed by Sub-Divisional Officer, Padrauna, Kushinagar in Case No. 280/16/03/2001/200-2001 (Computerized Case No. T201605440106362) (Ali Hasan Vs. Hazrat) are quashed to the extent of allowing the recall application.

19. The direction to transmit the record to Tehsil Khadda shall remain intact.

20. The Collector, Kushinagar shall ensure that the entire file along with recall application is transmitted forthwith to SDO, Khadda who shall take up the matter on 13.08.2025.

21. Both the parties, who are duly represented by their learned counsel, shall appear before the SDO, Khadda on 13.08.2025.

22. The SDO, Khadda shall hear both the parties and shall decide the recall application by the end of September, 2025 on merits.

23. It is made clear that this Court has not adjudicated upon the merits of the recall application and the same shall be considered in accordance with law.

24. Registrar (Compliance) is directed to send a copy of this order to Collector, Kushinagar within a week for compliance. Order Date :- 24.7.2025 AKShukla/-