Bachcha Rai and Another vs IIIrd A.D.J. and Others

Sibghat Ullah Khan, J.—Heard learned Counsel for the parties.

Both the Petitioners-Plaintiffs instituted Original suit No. 1218 of 1985 against Shri Kishun, Smt. Asharfa and Respondent Nos. 2 to 8 Ajai Kumar and others. The suit was decreed by 1st Additional Munsif, Deoria on 29.7.1987 restraining the Defendants from interfering in the possession of the Petitioner over the property in dispute. Defendant No. 2 Smt. Ashrafa was also restrained from transferring the land in dispute to any one else. Three sale deeds were executed by Defendant No. 2 Smt. Ashrafa, dated 4.10.1985 in favour of Defendant No. 3, dated 4.10.1985 in favour of Defendant Nos. 4 and 5 and dated 7.10.1985 in favour of Defendant Nos. 6 to 9. Both the Plaintiffs and Defendants Nos. 1 and 2 belong to the same family. Mst. Ashrafa was widow of Shri Faujdar Rai. Pedigree is given in the judgment of the Trial court dated 29.7.1987 which is Annexure-1 to the writ petition. The name of Mst. Ashrafa was recorded in the revenue record over the agricultural land in dispute. However, contention of the Petitioners was that it was entered for the purposes of maintenance. Against the judgment and decree passed by the trial court an appeal being Civil Appeal No. 228 of 1987 was filed before the District Judge, Deoria purporting to be on behalf of all the Defendants including Shri Kishun and Mst. Ashrafa. During pendency of appeal Respondent Nos. 2 to 8/Defendants 3 to 9 filed restoration application before the trial court under Order 9 Rule 13 CPC on 18.7.1989 which was registered as Misc. case No. 150 of 1989. However, the said case was dismissed in default on 4.9.1993. Thereafter another restoration application was filed which was dismissed on 22.4.1997.

Shri Kishun and Smt. Ashrafa have now died. Thereafter Petitioners filed an application in Civil Appeal No. 228 of 1987 on 18.12.1995 praying for dismissal of the same as incompetent on the ground that memorandum of appeal had not been signed by the Appellants and guardian ad litem of the minors Appellants who are Respondents No. 2 to 5 in this writ petition In the appeal Uma Shankar-Respondent No. 4 in this writ petition filed an application that appeal was fraudulently filed and decree in the suit had been obtained behind the back of the minors. In the appeal II Ird Additional District Judge, Deoria where it was pending passed an order on 31.7.1998 which has been challenged through this writ petition. Copy of the said order is Annexure-6 to the writ petition.

In the memorandum of appeal copy of which is Annexure-2 to the writ petition, Ajai Kumar and Santosh Kumar-Defendant Nos. 6 and 7/Respondent Nos. 2 and 3 in this writ petition were shown to be minors through their mother Smt. Kalawati. Uma Shankar and Prem Shankar were also shown to be minors who were Appellant Nos. 8 and 9 and who are Respondent Nos. 4 and 5 in this writ petition. They were shown to be filing appeal through Mst. Gulaicha. Memorandum of appeal was signed only by Shri Dinesh Kumar, Advocate. However, he had filed Vakalatnama only on behalf of Shri Kishun as mentioned in Annexure-6 to the writ petition. In Annexure-6 it is also mentioned that during pendency of the suit four minors were represented by guardian ad litem appointed by the court. However, in the memorandum of appeal they were not shown to be represented through guardian ad litem. 5. Before passing of the impugned order dated 31.7.1998 all the minors had become major.

In Annexure-6 to the writ petition it is mentioned that Appellant Nos. 6 to 9 who were minors (at the time of filing of appeal) were interested in pursuing with the appeal and they had filed application for substitution of legal representatives of Shri Kishun and applied for permission to sign the memorandum of appeal. The Respondents in the appeal i.e. the Petitioners objected to that and asserted that on behalf of these minor persons restoration application was filed before the trial court in which it was stated that no appeal had been filed and Shri Kishun had fraudulently filed appeal on their behalf. The appellate court found that Shri Kishun was doing pairvi on behalf of the minors however, he did not file the appeal after getting appointed some guardian and through that guardian which was against law. The appellate court therefore held that the right to file appeal could not be denied to the minors. Ultimately it was ordered that Appellants 6 to 9 who were minors at the time of filing of appeal and had become major meanwhile were entitled to file application for giving consent to pursue the appeal and for signing the memorandum of appeal and to file another application for transposing Appellant Nos. 1 to 5 out of whom some had died as Respondents including the legal representatives of the deceased Appellants.

The above order dated 31.7.1998 has been challenged through this writ petition.

In normal course such an order could not be passed. However, in view of two facts I do not consider it appropriate or in the interest of justice to set aside the impugned order dated 31.7.1998. The first is that sale deeds were executed by Smt. Ashrafa who was recorded tenure holder. Secondly Respondents Nos. 2 to 5 in this writ petition were minors and law, justice and court are always inclined towards minors for protection of their rights.

Accordingly, even though I do not fully agree with the impugned order still in the interest of justice I refuse to interfere therewith.

Writ petition is accordingly dismissed.