Anees Kamal Beg vs Musarrat Iqbal Beg @ Shah Nawaz and Another

Amreshwar Pratap Sahi, J.—The petitioner is defendant in a suit filed u/s 176 of the U.P.Z.A.& L.R. Act, 1950. The respondent No. 1 is plaintiff. He prayed for an interim injunction which appears to have been granted on 22.3.2002. This is the first order which is under challenge in the present writ petition. The suit was dismissed in default on 29.4.2002. During this period of dismissal an application for amendment was filed by the respondent-plaintiff which was allowed on 30.1.2003. The petitioner who is a defendant aggrieved by this incorrect procedure having been adopted by the Trial Court filed an application to the effect that the suit itself was not maintainable as the amendment has been allowed during the period when the suit had been dismissed in default. This application was rejected on 18.6.2003. A revision was filed which has been dismissed on 25.11.2005.

The present petition has been filled against three orders of the Trial Court, first against the injunction of status quo, secondly against the procedure adopted by the Trial Court for allowing the amendments, and thirdly rejecting the application filed by the petitioner on the issue of maintainability.

Sri Madan Bihari Lal learned Counsel for the petitioner submits that the Trial Court has committed a manifest error which aspect has been fully ignored by the Revisional Court.

Learned Counsel for the respondents submits that in a suit for partition an order of status quo should have been passed but the learned Counsel for the respondents could not successfully defend the procedure adopted by the Trial Court in relation to the amendment which was allowed on 31.1.2003 during the period when the suit stood dismissed.

In my opinion once the suit had been dismissed in default on 29.4.2002 then the Presiding Officer was functus officio and he could not have entertained and passed orders on any amendment application till the suit was restored on 25.2.2003. The amendment application having been filed prior to 29.4.2002 could not have been allowed after the suit was dismissed in default. To that extent the order dated 30.1.2003 cannot be sustained.

So far as the maintainability of the suit is concerned it is admitted to the parties that the suit has been restored on 25.2.2003.

The first and the third argument of the learned Counsel for the petitioner therefore cannot be accepted and the suit has been rightly restored.

The writ petition is therefore partly allowed. The order dated 30.1.2003 is quashed and the orders dated 18.6.2003 and 23.3.2005 are upheld. The suit would proceed as it has already been restored. The petitioner shall now be at liberty to move an appropriate application or lead evidence as the case may be in order to protect the interest of the petitioner as claimed by them and the Trial Court would be at liberty to pass a fresh order on the amendment application if it had been filed before 29.4.2002. Accordingly in the aforesaid circumstances the parties are further directed to maintain status quo with regard to the property in dispute. The Trial Court shall endeavor to dispose of the application and suit as expeditiously as possible preferably within a period of one year.