Allahabad High Court
CIVIL APPEAL None on 20 April 2013
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Case :- CIVIL REVISION No. - 309 of 2013Revisionist :- Yogesh Kumar SinghOpposite Party :- Om Prakash Agrawal And 6 OthersCounsel for Revisionist :- Kshitij ShailendraCounsel for Opposite Party :- Arvind Srivastava,P.R. Maurya,Shashank Maurya Connect withCase :- CIVIL REVISION No. - 310 of 2013Revisionist :- Mukesh MishraOpposite Party :- Om Prakash Agrawal And 7 OthersCounsel for Revisionist :- Kshitij ShailendraCounsel for Opposite Party :- Arvind Srivastava,P.R. Maurya,Shashank Maruya Hon'ble Anjani Kumar Mishra,J.
Heard counsel for the parties.
The aforesaid two revisions arise out of two separate suits forcancellation of the sale deeds and for injunction.
The plaintiff in these two suits are common but the maincontesting defendants are different as the sale deed sought to becancelled are regarding different portions of one compound.
In both the revisions, the order dated 20.04.2013 is impugned.By both these impugned orders, issues were framed in the suitsand, thereafter, out of the issues framed, three of the issues havebeen decided against the defendant-revisionists.
The contention of counsel for the revisionist is that the date,namely 19.04.2013 was fixed for settlement of issues. That daywas a holiday, on account of Ram Navami and, therefore, thematter came up before the Court on the next working day,namely 20.04.2013. The parties submitted their draft issues.The matter was thereafter adjourned by the Court stating thatthe parties could see the issues framed at the end of the day.
When the file was examined, it transpired that not only had 12issues each had been framed in both the suits, three of the issuesframed, namely issue nos. 9, 10 and 11 had also been decidedagainst the defendant.
It is contended that issue no. 9 pertained to the under valuationof the suit. Issue no. 10 pertained to the adequacy of the courtfees paid while issue no. 11 was with regard to the jurisdictionof the Court to hear the matter. This third issue incorporatedwithin itself, several other issues, which were to the effect as to whether, the suit was barred by Section 331 of the U.P.Zamindari Abolition and Land Reforms Act, Section 41 of theSpecific Relief Act, Section 52 of the Transfer of Property Actand Section 242 of the U.P. Tenancy Act.
It is contended that not only was no opportunity of hearingafforded to the revisionists, the orders were passed withouthearing anybody on the merits of the issues. The issuesinvolved mixed questions of law and fact and they have beendecided against the defendant-revisionists on the ground that noevidence had been adduced by them on these issues, which hadbeen framed at their instance.
He also submits that there was no occasion to adduce evidenceon the date, issues were being framed. It is therefore, contendedthat the order impugned is wholly illegal, malafide and withoutjurisdiction inasmuch as no issue could have been decidedwithout affording the parties opportunity of hearing. The orderstherefore, are liable to be set aside and the issues are liable to bedecided, afresh, after affording opportunity of hearing to theparties.
Shri P.R. Maurya, counsel appearing for the contestingrespondent, the plaintiff in the suits has submitted that theissues have been rightly decided. The orders, therefore, call forno interference.
He has however not been able to offer any explanation as tohow an order framing issues and deciding some of them couldbe passed simultaneously, coupled with a finding that noevidence had been adduced by the defendants to establish theissues, which had been framed at their instance.
In view of what has been stated above and since the orderimpugned has been passed also on the ground that thedefendant-revisionists have failed to bring on record anymaterial in support of the issues framed at their instance, theimpugned order, in my considered opinion cannot be sustained.
Since the issues had been framed on that very same date andevidence could only had been adduced after the issues had beenframed, it is writ large on the face of the record that the orderimpugned, deciding issues no. 9, 10 and 11 have been passedwithout affording any opportunity to adduce evidence.
In the absence of any opportunity to adduce evidence, it was notopen for the Court to have decided the issues holding that thedefendant-revisionists had not filed any evidence in support oftheir contentions.
Under the circumstances, the impugned order dated 20.04.2013in both the revisions are hereby set aside to the extent theydecide issues no. 9, 10 and 11 in the suits. The matters areremitted back to the trial Court to decide these issues afreshafter hearing the parties and after affording they adequateopportunity to adduce evidence.
It is however clarified that, in case, the Court considers itappropriate, it may decide all issues together after the entireevidence had been led by the parties.