Sushila Devi and Others vs Commissioner Varanasi Divi. and Others

Krishna Murari, J.—Heard Shri Rajeev Misra, learned Counsel for the petitioners and Sri Ram Kumar Dubey holding brief of Sri V.K. Shukla, learned Counsel for the respondents No. 8 and 9. Sri Dubey appearing on behalf of the contesting respondents submits that the writ petition may be disposed of at the stage of admission without calling a counter affidavit.

The present writ petition arises out of a suit instituted by the respondents No. 8 and 9 and therefore, only these two persons are the necessary party in the present writ petition. It appears that a suit u/s 229-B was filed by the respondents No. 8 and 9 against eight persons including Sushila Devi, Shama Parveen and Rehana Khatoon defendant Nos. 5, 4 & 3, who are the petitioners. During pendency of the suit, certain defendants entered into the compromise with the plaintiff. However, the suit proceeded ex parte against the present petitioner and the judgment and decree was passed on 12.06.2009. Thereafter, the petitioner applied for recall of the said ex parte judgment and decree but remained unsuccessful. The matter was contested in Revision No. 114 of 2008-09 before the Board of Revenue. The Board of Revenue vide impugned order has held that the revision filed before it has become infructuous as the ex parte judgment and decree dated 12.06.2009 has been recalled. Shri Rajeev Misra, learned Counsel for the petitioners submits that the Board of Revenue was not justified in holding that the revision has become infructuous in as much as the ex parte judgment and decree so far as the petitioner is concerned has not been recalled. He submits that on account of the ex parte judgment and decree, no useful purpose is going to be served even if the petitioner is permitted to lead evidence in support of his case.

Learned Counsel for the contesting respondents submits that the certain defendants have entered into compromise with the plaintiff and that portion of the judgment and decree may remain intact to which learned Counsel for the petitioners has no serious objection.

Having heard learned Counsel for the parties, the writ petition is disposed of by providing that the ex parte judgment and order dated 12.06.2009 so far as it relates to the petitioner is concerned stands recalled. It shall be open to the petitioner to lead evidence in support of his case and the court will deliver the judgment on the basis of evidence which may be led by the parties.

By way of clarification, it is added that the compromise already arrived at with certain defendants has attained finality. That portion of the judgment and decree shall not be re-opened. But it shall not bind the petitioners.

With the aforesaid directions/observations, the writ petition is finally disposed of.