MADHU Vs. DISTRICT JUDGE AND ORS.

JUDGEMENT

(1.) Heard learned Counsel for the petitioner. These proceedings under Article 226 of the Constitution of India have been instituted assailing the order dated 7.2.2015 passed by the learned District Judge, Sitapur, whereby the appeal filed by one Shri Satish Kumar and Ram Pyari challenging the order dated 28.7.2012, passed by the learned Trial Court has been ordered to be converted into a revision petition. Shorn of unnecessary details, facts of the case are that a suit was filed by one Shri Satish Kumar for cancellation of sale-deed allegedly executed by Smt. Shanti Devi in favour of Smt. Madhu on 16.6.2008. Smt. Madhu is defendant No. 2 in the suit. Smt. Madhu-petitioner moved an application before the learned Trial Court for getting D.N.A. Test conducted to ascertain as to whether Shri Satish Kumar is the son of Smt. Shanti Devi. The said application was allowed. The revision petition preferred against the said order allowing the application for D.N.A. Test was dismissed. Thereafter a writ petition was preferred before this Court which was dismissed as having become infructuous by this Court by means of an order dated 12.9.2012 passed in Writ Petition No. 5585 (M/S) of 2011. Thereafter, since plaintiff-Shri Satish Kumar did not make himself available for DNA Test in terms of the earlier order, an application was moved by the petitioner, who is defendant in the suit under section 151 of the C.P.C. for dismissal of the suit on the ground that the same has been filed only with a view to harass her. Allowing the said application, the suit was dismissed by the learned Trial Court by means of the order dated 28.7.2012.

(2.) During the pendency of the said suit, the plaintiff-Satish Kumar executed a sale-deed in respect of the property in suit on 7.1.2009 in favour of one Ram Pyari. Satish Kumar and Ram Pyari both challenged the order dated 28.7.2012 by way of instituting Civil Appeal No. 97 of 2012. The learned Additional District and Sessions Judge, Court No. 7, Sitapur, was of the view that against the order of the learned Trial Court dated 28.7.2012 appeal was not maintainable, hence, by means of the order dated 20.5.2013 he directed that the matter may be laid before Hon'ble the District Judge for conversion of the appeal into a revision and both the parties were directed to appear in the Court of learned District Judge, Sitapur. Challenging the aforesaid order dated 20.5.2013, a Writ Petition bearing No. 4715 (M/S) of 2013 was filed by Smt. Shanti Devi and Smt. Madhu, who is the present petitioner in this petition. The said writ petition was finally disposed of by means of an order dated 24.7.2013 with the direction to the petitioners to the said writ petition to approach the Revisional Court and raise objection in- regard to their grievance, which would be considered and disposed of appropriately in accordance with law by the District Judge, Sitapur.

(3.) After passing of the aforesaid order dated 24.7.2013 by this Court, the application moved by Shri Satish Kumar seeking substitution under Order XXII, Rule 4 read with Order VI, Rule 17, C.P.C. was to be considered by the learned Court below. The said application has been numbered as Application No. 44 Ka 1. It appears that the District Judge heard the arguments of the parties on the application No. 44 Ga 1 on 31.1.2015 and fixed 7.2.2015 for orders on the said application. The District Judge, however, while passing the order on 7.2.2015, which has been challenged by the petitioner in this writ petition, directed that the Appeal No. 97 of 2012 is converted into revision petition. Accordingly, he further directed that let the revision be registered and file be transmitted to the Revisional Court, namely, to the Court of learned Additional District Judge, Court No. 7, Sitapur for disposal in accordance with law. The parties were directed to appear before the learned Additional District Judge, Court No. 7, Sitapur on 21.2.2015.