BIRENDRA KUMAR PANDEY Vs. DISTRICT JUDGE ALLAHABAD

JUDGEMENT

(1.) By means of the present petition, the petitioners seek issuance of a writ in the nature of certiorari quashing the impugned orders which are dated 7.11.1996 and 21.9.1996 passed by the District Judge, Allahabad and Additional Judge, Small Causes Court, Allahabad respectively. The District Judge, Allahabad by his order dated 7.11.1996 dismissed second appeal being No. 275 of 1996 preferred by the petitioners holding that the . appeal was not maintainable. The aforestated second appeal stemmed from the order dated 21.9.1996 passed by the Additional Judge, Small Causes Court in mutation appeal No. 286 of 1989 by which amendment/substitution applications 28C and 29C filed by the petitioners under Order VI, Rule 17 and under Order XXII, Rule 4, C.P.C. at the appellate stage.

(2.) It would transpire from a perusal of the record that one Devi Prasad was arrayed as a party respondent No. 1 in the memo of appeal. By means of the amendment application 28C, the petitioner desired to re-christen the description of Devi Prasad as Bairagi/Sanyasi, Chela of Smt. Ram Devi, Bairagini. Subsequently, during the pendency of the said application 28C, Devi Prasad Shukla met his natural end and an application 29C came to be moved attended with the prayer that the name of Devi Prasad Shukla be inked out from the array of the parties. Since the second appeal preferred by the petitioners under Section 476 of the U. P. Nagar Mahapalika Adhiniyam, 1959 has been dismissed on ground of being not maintainable, it would not be in the fitness of things to traverse upon the correctness of the order dated 21.9.1996. for in case, it is held that the second appeal was maintainable, the mater will have to be relegated to the District Judge for decision of the second appeal on merits in accordance with law, Accordingly, counsel for the parties have been heard.

(3.) The petitioners herein applied for mutation of their names in the Municipal records in place of late Shitla Prasad Shukla which was objected to by the contesting respondents. The mutation application, it transpires, was rejected whereupon an appeal was preferred by the petitioners under Section 472 of the U. P. Nagar Mahapalika Adhiniyam, 1959 (In short the 'Adhiniyam') and. it was during the pendency of the appeal that the petitioners moved two applications i.e.. 28C and 29C which were rejected by the Additional Judge. Small Causes Court, Allahabad vide order dated 21.9.1996. It has been canvassed by the learned counsel for the respondents that the order appealed against under Section 472 did not come within the purview of Section 472 and hence the second appeal under Section 476 of the U. P. Nagar Mahapalika Adhiniyam too would not be maintainable and the learned District Judge was justified in rejecting the appeal as not maintainable. Section 472 of the Adhiniyam which provides for an appeal, is excerpted below :