AKHILESH PRATAP SINGH Vs. DISTRICT JUDGE GORAKHPUR

JUDGEMENT

(1.) -The present writ petition has been filed for quashing the judgment and order dated 15.9.2000 (Annexure-8 to the writ petition) passed by the District Judge, Gorakhpur, respondent No. 1 in Miscellaneous Appeal No. 19 of 2000, Akhilesh Pratap Singh v. Shiv Bachan Singh and others. Further issuing a writ in the nature of certiorari quashing the judgment and decree dated 25.5.1995, passed by the Civil Judge (Senior Division), Gorakhpur in Original Suit No. 270 of 1984, Sri Ram Singh and others v. Shiv Bachan Singh and others, (Annexure-3 to the writ petition).

(2.) THE facts arising out of the present writ petition are that the respondent Nos. 9 and 10 along with the petitioners instituted a Suit No. 270 of 1984 in the Court of respondent No. 2 and against respondent Nos. 3 to 8 praying for a permanent injunction restraining the defendants from interfering in their possession over the land in dispute. Admittedly, on the date when the suit was filed, the petitioners were minors, therefore, they were represented by respondent No. 10 who was their mother and next friend. In the aforesaid suit, the petitioners were plaintiff Nos. 3 and 4 respectively while respondent Nos. 9 and 10 were plaintiff Nos. 1 and 2 respectively. In the aforesaid suit, Sri Om Prakash Sinha and one Deo Prakash Rai, advocates were engaged as counsels for the plaintiffs by respondent No. 10 and as the petitioners were minor, as such, they could not and did not independently engage another advocate as their counsel. On 30.1.1985, the respondent No. 9 (plaintiff No. 1) filed an application (Paper No. 12-ka) stating that he has got no interest in the suit property and as such, he is not interested in pursuing the Original Suit No. 270 of 1984 and as such, has prayed for dismissal of the said suit against the defendants so far as respondent No. 9 was concerned. THE aforesaid application was never disposed of by the Court. On 21.2.1995, the respondent No. 10 that is plaintiff No. 2 filed an application (Paper No. 84 A-2) stating that the petitioners with plaintiff Nos. 3 and 4 have become major and prayed that above fact may be recorded in the case. That on 10.3.1995, the trial court that is respondent No. 2 directed that an endorsement to that effect be made that the petitioner has become major. THE order dated 10.3.1995 was passed by the trial court in the absence of the petitioners which is apparent from the order sheet of the suit. On 10.3.1995, itself paper No. 85 (Ka-2) alleged to be a compromise between all the parties to the suit (including the petitioners) and allegedly the signatures of all the parties including the petitioners were filed. THE same was verified on the same date, i.e., 10.3.1995 and during verification of the compromise all parties to the suit except the petitioners were present and the petitioners have been shown to be represented by one Sri Hari Nandan Srivastava, advocate. THE aforesaid fact is clear from the order sheet and the endorsement to that effect by the Civil Judge (Senior Division) has been made. A copy of the order sheet has been filed by the petitioners as Annexure-2 to the writ petition.

(3.) AGGRIEVED by the order dated 19.12.1998, the respondent Nos. 3 to 8 filed a Civil Revision No. 41 of 1999, which was allowed by the IIIrd Additional District Judge, Gorakhpur, vide its judgment and order dated 25.9.1999. A copy of the same has been filed as Annexure-6 to the writ petition. From the perusal of the judgment passed by the appellate court shows that the revision instituted by the respondents was allowed by quashing the order dated 19.12.1998 only on the ground that against the judgment and decree dated 25.5.1995 an application under Section 151, ?.P.C. was not maintainable and proper course for the petitioners was to file an appeal under Order XLIII, C.P.C. In view of the aforesaid judgment, the petitioners instituted a miscellaneous appeal under Order XLIII, which was registered and numbered as Miscellaneous Appeal No. 19 of 2000. The respondents vide its order dated 15.9.2000 dismissed the appeal filed by the petitioners. A copy of the same has been filed as Annexure-8 to the writ petition. AGGRIEVED by the aforesaid order, the petitioners have filed the present writ petition.