Misc. Case No. 90 of 2022 · High Court · 2025

3. The petitioner, before this Court, had earlier approached this Court through First Appeal From Order No. 307 of 2024 wherein the order dated 11.11.2022, which is the order impugned in the present writ petition, was challenged. The co-ordinate Bench on 16.10.2024 dismissed the appeal of petitioner and held as under:- "1. Heard Shri K.K. Nirkhi, learned counsel for the appellant and Shri J.P. Rai, learned counsel for the respondents.

2. Since counter and rejoinder affidavits have been exchanged in the instant matter, the appeal is being decided finally at admission stage itself with consent of parties.

3. The present appeal raises a challenge to the order dated 17.11.2023 whereby the District Judge, Kanpur Nagar has rejected application under Order XLI Rule 19 of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') filed by the plaintiff-appellant whereby he had prayed for recalling the order dated 11.11.2022 passed in Misc. Civil Appeal No.90 of 2022.

4. The facts of the case relevant for deciding the instant appeal are that challenging an order dated 23.08.2012 passed by the Competent Authority under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short 'the Act of 1971'), the appellant preferred an appeal before the District Judge, Kanpur Nagar under Section 9 of the Act of 1971. The appeal was filed in the year 2021 and was not supported by any application seeking condonation of delay. It appears that the District Judge rejected the appeal as barred by limitation at the stage of registration itself by order dated 11.11.2022, on which date, appellant was not present. The appellant preferred an application under Order XLI Rule 19 CPC primarily taking a ground that in his absence, the appeal could not be dismissed. It is this application which has been rejected by the order impugned.

5. Learned counsel for the appellant submits that in view of explanation attached to Rule 17 of Order XLI CPC, the District Judge was not competent to dismiss the appeal on merits when the appellant was not present on the particular date. He, otherwise, submits that appellant having deposited Rs.3,00,000/- out of Rs.12,00,000/- imposed by the Authority, the appeal should have been heard on merits. He also submits that appeal was not barred by limitation as the appellant could not obtain certified copy of the order impugned despite certain applications having been moved in this regard.

6. On the other hand, Shri Rai, learned counsel for the respondents has opposed the appeal and submitted that plot was allotted to the appellant in the year 1982 and it was only for certain period of time that the appellant deposited the lease rent and, therefore, he was an unauthorized occupant as lease did not survive. As regards the orders passed by the District Judge, it is contended that the appellant deliberately absented himself from the proceedings and, even otherwise, since the appeal was preferred after a delay of eight years without there being any application for condonation of delay, it was rightly dismissed and recall application has also been rightly rejected.

7. Having heard learned counsel for the parties, the first question which arises for consideration in the present proceedings is as regards maintainability of the application under Order XLI Rule 19 CPC. The Court finds that the appeal filed by the appellant was not even registered as is apparent from the operative portion of the order dated 11.11.2022 which speaks that the appeal has been rejected at the stage of registration itself. Other reasons are mentioned as absence of the appellant and the appeal being barred by limitation.

8. A bare perusal of Rule 19 Order XLI CPC reveals that it applies when the appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 of Order XLI. The said rules apply when the appeal is listed respectively for admission or hearing. Even if, the provisions of CPC are stretched to the proceedings of appeal under the Act of 1971, since the appellant himself chose to take recourse of the provisions under Order XLI Rule 19 CPC by applying to the same court, the Court finds that the appeal which is preferred beyond time cannot be treated as a regularly registered appeal. It remains incompetent so long as delay is not condoned. Therefore, the dismissal of appeal by order dated 11.11.2022 is not either under Rule 11, sub-rule (2) or Rule 17 of Order XLI. Consequently, this Court has no doubt that the application under Order XLI Rule 19 CPC was not maintainable. It appears that maintainability of the application under the said provision was missed by the learned District Judge and he proceeded to decided the application on merits.

9. Since I find that application under Order XLI Rule 19 CPC was not maintainable against the order dated 11.11.2022, the instant appeal challenging the order passed on an application which was not maintainable, has no force and is, accordingly, dismissed."

4. From perusal of the order passed by co-ordinate Bench in F.A.F.O. No. 307 of 2024, it appears that petitioner had already challenged the order dated 11.11.2022 which is the order impugned in the present writ petition. Moreover, the appeal which has been preferred by petitioner under Section 9 of the Act of 1971 is not supported by any application for condonation of delay.

5. This Court already on 16.10.2024 held that the application filed under Order XLI Rule 19 itself was not maintainable as the appeal could not have been registered as it was beyond statutory period and once the delay was not condoned, the application under Order XLI Rule 19 CPC was not maintainable. Further, this writ petition is a second attempt by petitioner who has assailed the order dated 11.11.2022 after having failed to get any relief in F.A.F.O. No. 307 of 2024.

6. Writ petition is misconceived and stands dismissed. Order Date :- 13.2.2025 V.S.Singh VIDYA SAGAR SINGH High Court of Judicature at Allahabad

3. The petitioner, before this Court, had earlier approached this Court through First Appeal From Order No. 307 of 2024 wherein the order dated 11.11.2022, which is the order impugned in the present writ petition, was challenged. The co-ordinate Bench on 16.10.2024 dismissed the appeal of petitioner and held as under:- "1. Heard Shri K.K. Nirkhi, learned counsel for the appellant and Shri J.P. Rai, learned counsel for the respondents.

2. Since counter and rejoinder affidavits have been exchanged in the instant matter, the appeal is being decided finally at admission stage itself with consent of parties.

3. The present appeal raises a challenge to the order dated 17.11.2023 whereby the District Judge, Kanpur Nagar has rejected application under Order XLI Rule 19 of Civil Procedure Code, 1908 (hereinafter referred to as 'CPC') filed by the plaintiff-appellant whereby he had prayed for recalling the order dated 11.11.2022 passed in Misc. Civil Appeal No.90 of 2022.

4. The facts of the case relevant for deciding the instant appeal are that challenging an order dated 23.08.2012 passed by the Competent Authority under the provisions of Public Premises (Eviction of Unauthorized Occupants) Act, 1971 (in short 'the Act of 1971'), the appellant preferred an appeal before the District Judge, Kanpur Nagar under Section 9 of the Act of 1971. The appeal was filed in the year 2021 and was not supported by any application seeking condonation of delay. It appears that the District Judge rejected the appeal as barred by limitation at the stage of registration itself by order dated 11.11.2022, on which date, appellant was not present. The appellant preferred an application under Order XLI Rule 19 CPC primarily taking a ground that in his absence, the appeal could not be dismissed. It is this application which has been rejected by the order impugned.

5. Learned counsel for the appellant submits that in view of explanation attached to Rule 17 of Order XLI CPC, the District Judge was not competent to dismiss the appeal on merits when the appellant was not present on the particular date. He, otherwise, submits that appellant having deposited Rs.3,00,000/- out of Rs.12,00,000/- imposed by the Authority, the appeal should have been heard on merits. He also submits that appeal was not barred by limitation as the appellant could not obtain certified copy of the order impugned despite certain applications having been moved in this regard.

6. On the other hand, Shri Rai, learned counsel for the respondents has opposed the appeal and submitted that plot was allotted to the appellant in the year 1982 and it was only for certain period of time that the appellant deposited the lease rent and, therefore, he was an unauthorized occupant as lease did not survive. As regards the orders passed by the District Judge, it is contended that the appellant deliberately absented himself from the proceedings and, even otherwise, since the appeal was preferred after a delay of eight years without there being any application for condonation of delay, it was rightly dismissed and recall application has also been rightly rejected.

7. Having heard learned counsel for the parties, the first question which arises for consideration in the present proceedings is as regards maintainability of the application under Order XLI Rule 19 CPC. The Court finds that the appeal filed by the appellant was not even registered as is apparent from the operative portion of the order dated 11.11.2022 which speaks that the appeal has been rejected at the stage of registration itself. Other reasons are mentioned as absence of the appellant and the appeal being barred by limitation.

8. A bare perusal of Rule 19 Order XLI CPC reveals that it applies when the appeal is dismissed under Rule 11, sub-rule (2) or Rule 17 of Order XLI. The said rules apply when the appeal is listed respectively for admission or hearing. Even if, the provisions of CPC are stretched to the proceedings of appeal under the Act of 1971, since the appellant himself chose to take recourse of the provisions under Order XLI Rule 19 CPC by applying to the same court, the Court finds that the appeal which is preferred beyond time cannot be treated as a regularly registered appeal. It remains incompetent so long as delay is not condoned. Therefore, the dismissal of appeal by order dated 11.11.2022 is not either under Rule 11, sub-rule (2) or Rule 17 of Order XLI. Consequently, this Court has no doubt that the application under Order XLI Rule 19 CPC was not maintainable. It appears that maintainability of the application under the said provision was missed by the learned District Judge and he proceeded to decided the application on merits.

9. Since I find that application under Order XLI Rule 19 CPC was not maintainable against the order dated 11.11.2022, the instant appeal challenging the order passed on an application which was not maintainable, has no force and is, accordingly, dismissed."

4. From perusal of the order passed by co-ordinate Bench in F.A.F.O. No. 307 of 2024, it appears that petitioner had already challenged the order dated 11.11.2022 which is the order impugned in the present writ petition. Moreover, the appeal which has been preferred by petitioner under Section 9 of the Act of 1971 is not supported by any application for condonation of delay.

5. This Court already on 16.10.2024 held that the application filed under Order XLI Rule 19 itself was not maintainable as the appeal could not have been registered as it was beyond statutory period and once the delay was not condoned, the application under Order XLI Rule 19 CPC was not maintainable. Further, this writ petition is a second attempt by petitioner who has assailed the order dated 11.11.2022 after having failed to get any relief in F.A.F.O. No. 307 of 2024.

6. Writ petition is misconceived and stands dismissed. Order Date :- 13.2.2025 V.S.Singh VIDYA SAGAR SINGH High Court of Judicature at Allahabad