JAGESHWAR Vs. UPSANCHALAK CHAKBANDI, HARDOI CAMP, UNNAO

JUDGEMENT

(1.) Heard learned counsel for the petitioners and Sri Hemant Pandey learned Standing counsel for the State. Notice on behalf of respondent Nos. 1 and 2 has been accepted by the office of Chief Standing counsel. Sri Anoop Srivastava learned counsel for the respondent No. 3-caveator.

(2.) Submission of learned counsel for the petitioners is that the D.D.C. has committed an error in allowing the revision preferred by the private respondent No. 3 for the reason that the respondent No. 3 is neither an aggrieved party and since his predecessor was party to the proceedings and had contested the matter whereafter the order dtd. 28/3/2018 has been passed on merit. Consequently, the application for recall at the behest of the private respondent No. 3 before the S.O.C itself was not maintainable. At best the private respondent could have got the rights which vested with his predecessor-in-interest and he could not claim any fresh rights and, therefore, there was no requirement for him to be heard. In so far as the private respondent No. 3 is considered the proceedings were not ex parte as his predecessor had already participated and he had executed the sale-deed on 12/12/2014 while the proceedings were pending before the Consolidation Officer in teeth of an interim order. It is, thus, submitted that the D.D.C. has exceeded his jurisdiction in allowing the revision and impugned order is bad in the eyes of law.

(3.) Sri Anoop Srivastava learned counsel for the private respondent No. 3 has refuted the aforesaid submissions and has urged that even though the private respondent had purchased the property from Medi Lal on 30/5/2014 yet his rights in the property-in-question had crystalised at that very stage itself. In law, the private respondent being an assignee was legally entitled to get himself impleaded and to contest the proceedings. It is also urged that even otherwise Medi Lal died in the year, 2019 and there was none to effectively represent his estate. It was in the notice of the petitioners that Medi lal had alienated the property and it was incumbent upon the petitioners to have impleaded the private respondent as party but even otherwise if it was not done neverthless the rights would vest in the private respondent and they had to be considered before the order could be passed as it would affect the rights of the private respondents who had purchased the property in the year, 2014. It is also stated that admittedly upon the death of Medi Lal in the year 2019 his wife had been substituted and not the son and even otherwise in the said case, substitution was not applicable, as it was not a case of substitution on account of succession, rather it was a case for devolution of interest during the pendency of the proceedings which is in the nature of an assignment which is not covered by Order XXII, Rule 4 rather it is covered by Order XXII, Rule 10 C.P.C. In such circumstances, the D.D.C. noticing the aforesaid fact has merely set aside the order passed by the S.O.C. dtd. 28/3/2018 which was on merits but exparte and behind the back of the private respondent as well as the order dtd. 6/12/2022 whereby the application for recall/restoration moved by the private respondent was rejected and this order has been set aside and the parties have been directed to appear before the S.O.C. affording the opportunity of hearing to contest the case on merits. In such circumstances, such discretionary order may not be interfered with in exercise of jurisdiction of this Court under Article 226 of the Constitution of India.