AJAY SHARMA Vs. COLLECTOR VARANASI

JUDGEMENT

(1.) R. B. Misra, J. Heard Sri Anil Bhushan, learned Counsel for the petitioner, Sri Vikram Nath, learned Counsel for the respondent Nos. 7 to 9, and learned Standing Counsel for the respondent Nos. 1 to 4. With the consent of learned Counsels for the parties this writ petition is decided finally at this stage in view of the Second Proviso to Rule 2 of Chapter XXII of the Allahabad High Court Rules, 1952.

(2.) IN the present writ petition, prayer has been made for issuance of writ of certiorari for quashing the order dated 27th November, 1998 (Annexure 5 to the writ petition) passed by the Collector, Varanasi and order dated 17th December, 1998 (Annexure 6 to the writ petition) passed by the Sub- Divisional Officer (Uttari), Varanasi.

(3.) THE strengthen the cause for and the following submissions have been made for and on behalf of the petitioner: (a) THE issue of jurisdiction raised at the first instance before the lower authorities and decree passed in favour of the petitioner could not be legally set aside administratively by the Sub-Divisional Magistrate at the instance of the District Magistrate, in view of 1981 ACJ 138, Sabha Chand and others v. Narain Singh and others, where the question of jurisdiction in the suit for partition not raised earlier before the trial Court could not be raised before the Civil Court after the dismissal of the suit on merits, the findings arrived at by trial Court could not be challenged on the ground of lack of jurisdiction at subsequent stage. For raising the contentions and questions of jurisdiction too before the appellate or revisional Court two aspects are necessary, firstly, the objection must have been taken at earliest stage, and secondly, the failure of justice might have be the cause before the Civil Court. Similar view was also taken in 1981 ACJ 148, Baldeo v. Beni Lal Kedia and others. (b) THE decree could be set aside on an application under Order IX, Rule 13 of CPC provided it was not decided on merits. Since in the present case the decree was passed after hearing the parties, as such, the application under Order IX, Rule 13 CPC was not maintainable, therefore, the appropriate remedy for respondent Nos. 7 to 9 was to file an appeal against the decree but instead of filing appeal such respondents got the earlier decree set aside by way of administrative order, which are in derogation to the judgment in 1999 (2) JCLR 587 (All) : 1999 (1) ACJ 532, Parmarth Prakash v. THE Union of India and others. (c) THE impugned orders could be judged on a reason given in the impugned order itself, not on the basis of supplementation put by way of an affidavit, hence, the counter-affidavit filed by the respondents raising certain questions for strengthening the impugned order is not permissible in view of the judgment of AIR 1978 SC 851, Mohinder Singh Gill and another v. THE Chief Election Commissioner, New Delhi and others.