ISHAQ KHAN Vs. STATE OF U.P.

JUDGEMENT

(1.) HEARD learned counsel for the petitioners. The contention raised by Sri Saxena is that the appeal filed by the defendant - respondent under Section 331 (3) of the U.P. Zamindari Abolition & Land Reforms Act, 1950, is not maintainable and, therefore, the impugned order, being cursory in nature without considering the argument raised, deserves to be set aside.

(2.) IT appears that a Suit filed by the petitioners - plaintiffs under Sections 176/229 -B was decreed. The petitioners contend that the defendants - respondents were not parties to the Suit. They filed an application under Order 9 Rule 13 CPC which was rejected. Thereafter, they have filed an Appeal. The contention of Sri Saxena is that the Appeal was not entertainable against the rejection of the said application and even otherwise on merits, the defendants were not aggrieved person. In such circumstances, the objection of the petitioner has been cursorily dealt with while rejecting the said plea vide order dated 17.11.2012.

(3.) THE defendant can file an application under Order IX Rule 13 in the Suit whereas an appeal can be filed by any aggrieved person. This is the distinction in the scope of these two remedies. Sri Saxena urged that the appeal had been filed only against the rejection of the application under Order IX Rule 13. This submission of Sri Saxena is not correct inasmuch as the prayer made in the appeal, copy whereof is Annexure -4 to the writ petition, is clearly to the extent to set aside the judgment and decree dated 11.8.2009.