Kailash Nath Gupta vs Adhishasi Adhikari, Bhadohi Industrial Development Authority and Others

Sibghat Ullah Khan, J.—Heard learned counsel for the parties. Petitioner is plaintiff in O.S. No. 520 of 1983 which he has Instituted against respondent Nos. 1 and 2, the authorities of Bhadohi Industrial Development Authority.

The suit is for permanent prohibitory injunction seeking to restrain the defendants from interfering in the plaintiffs possession over the land in dispute. Plaintiff claims to have matured his title through adverse possession over the same. In the suit application for inspection through Amin was filed and allowed. Amin gave the report on 17.5.1984, copy of which is Annexure-2 to the writ petition. Objections filed against the Amin report by the defendants respondents are Annexure-4 to the writ petition. Objections were rejected by the trial court/Munsif Bhadohi, Gyanpur (which at the relevant time was in District Varanasi) on 26.3.1993 and Amin''s report was confirmed. Against the said order defendants respondents No. 1 and 2 filed revision being Civil Revision No. 192 of 1993, IXth A.D.J. Varanasi allowed the revision through order dated 11.12.1997. rejected Amin''s report and directed the Amin to survey plot Nos. 155 and 156 at 11 a.m. on 11.1.1998 in the presence of learned counsel for both the parties. Revisional court held that report of the Amin was ex parte and it was not proved that counsel of the respondents was informed about the date of inspection.

The order of the revisional court has been challenged through this writ petition.

The Amin in his report dated 17.5.1984 mentioned that counsel for the respondents did not accept the notice of intimation of date of inspection hence it was sent through registered post to him and thereafter inspection was made on 11.5.1984. Under which provision Court Amin sent the notice through registered post has neither been mentioned nor pointed out during arguments in this writ petition. Registry receipt was not annexed by the Amin alongwith his report. It was not mentioned by the Amin that which learned counsel was sought to be given the notice of Information of date. In any case It was not mentioned that why registered intimation was not sent to the defendants. It clearly means that Court Amin was in collusion with the plaintiff and submitted ex parte report supporting his case. The defendants respondents in their objections had categorically stated that neither they nor their advocate received any information of date of inspection by the Amin either directly or through registered post. Learned counsel for the petitioners has placed reliance upon an authority of this Court in S.P. Jain v. State of U.P., 1996 ALJ 340, paras 2 and 3 of which are quoted below:

The order dated 29th August. 1988. passed by the Vth Addl. Civil Judge. Meerut in Original Suit No. 453 of 1987 between Satyendra Prasad Jain and others and State of U.P. and others, rejecting the report of the Amin is under challenge in the instant revision u/s 115 of the Code of Civil Procedure. 1908. hereinafter called the Code.

Second proviso to Section 115 of the Code, is amended by the State of Uttar Pradesh, forbids the revisional court from varying or reversing any order including an order deciding an Issue made in the course of a suit or other proceeding, except where the order, if so varied or reversed, would finally dispose of the suit or other proceedings; or the order, If allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it is made. Learned counsel for the applicants has failed to demonstrate existence of any of the aforesaid two conditions envisaged in the second proviso to Section 115 of the Code.

In the instant case. It is categorically proved that the Inspection was made without intimation to the defendants respondents or their learned counsel hence it occasioned in grave injustice to them. In fact inspection was done and report was given In collusion with the plaintiff by the Amin.

Even otherwise an extremely just order has been passed by the lower revisional court hence there is absolutely no occasion to interfere with the said order in exercise of writ jurisdiction vide Bhartiya Seva Samaj Trust Tr. Pres. and Another Vs. Yogeshbhai Ambalal Patel and Another, .

Writ petition is accordingly dismissed. Both the parties are directed to appear before the trial court on 4.2.2013. The trial court shall fix date and time of inspection by Amin or Advocate Commissioner and after such inspection report shall be submitted. As the suit is very old, hence, it shall be decided very expeditiously, In case plaintiff petitioner has got interim injunction order in his favour then absolutely no unnecessary adjournment shall be granted to the plaintiff petitioner if any adjournment is granted to plaintiff petitioner it shall be on a very heavy cost which shall not be less than Rs. 500 per adjournment payable before the next date failing which suit shall be dismissed for want of prosecution.