IN THE HON’BLE HIGH COURT OF JUDICATURE AT ALLAHABAD
SPECIAL APPEAL NO. OF 2012
(Under Chapter VIII Rule 5 of High Court
Rules, 1952)
(DISTRICT – ETAWAH)
1. Shanti
Mohan.}
2. Shankar Lal.}
Both sons of
Late Radha Raman Agrawal, resident of
Mohalla
Behan Tola Town Auraiya, District Etawah. Plaintiff / respondent
Versus
1. Smt. Rama
Dubey wife of Radha Raman Dubey,
Resident of House NO. 15/40 Halwai
Khana Town Auraiya,
District – Etawah. ---------------(Petitioner)/ Defendant No. 2
.
2. VI
Additional District Judge, Etawah.
3. Civil Judge,
Etawah.----------------------------- Proforma respondents
4. Mahendra
Dutt son of Radha Raman, resident of
Mohalla Paschim Darwaha Town Auraiya,
District- Etawah. (Defendant No. 1)
----------------------------------Respondents.
Special Appeal by the Respondent 3
and 4 of the writ petition no. 20205 of 1996 against the order and the Judgement
dated 10.9.2012 by Hon’ble Justice
Sudhir Agrawal .
BETWEEN
Smt. Rama
Dubey -----------------------------------Petitioner/ Defendant No.2
AND
VI
Additional District Judge and 4 others ----------------Respondents
The relief sought by filing this
Special Appeal that Impugned Order
and the Judgement dated 10.9.2012 in
writ petition No. 20205 of 1996 passed in excess of power and without
jurisdiction, may kindly be set aside
and the appropriate orders may be passed by this Hon’ble Court in order to
maintain the dignity and majesty of the Hon’ble Court by deciding the application seeking prosecution of the
petitioner for filing false documents i.e. the purported agreement first time writ petition dated 27.3.1971, 19.5.1979
(bearing forged signature of Applicant/deponent) namely filed as Annexure No. 1 to writ petition
and Annexure R.A. 1
respectively by the petitioner and the writ petition may be dismissed within
the four corner of the Jurisdiction Conferred under Article 227 of Constitution
of India in exercise of supervisory jurisdiction.
Valuation Of the
Writ petition ----------------Rs. 100/-
Valuation of
the Appeal-------------------Rs. 100/
Court Fees
Paid------------------------------Rs.
100/-
That present
appeal is preferred on the following amongst other grounds
G R O U N D S
1. Because, the
jurisdiction of the Hon’ble High Court in exercise of the power conferred by
article 225 of the constitution of India and the Rules of the court, 1952
formulated in this regard regulates the constitution of the Bench under as there may
be consistency in the orders passed in the same matter and thereby
inconsistency in the order leading to material contradiction may be avoided by
the Hon’ble Single Judge, otherwise the order will be void and passed in
inherent lack of jurisdiction, which has been done in the present case.
2. Because, the
endeavor was maintained by the counsel for the appellants for protecting the
dignity of the Hon’ble Court by stating and demonstrating that fraud and
justice never dwell together and fraud
and deceit neither defend nor excuse any man.
3.
Because, the Hon’ble Single Judge has written
wrongly in the judgement on 10.9.2012
without giving any knowledge about its contends to the counsels of both the
parties, till it was placed on internet for its perusal about the contents of
the said judgement passed in Writ Petition No. 20502 of 1996, Smt. Rama Dubey Versus IV Additional District
Judge and 4 others arising out in the
Misc. proceeding arising out of restoration proceedings filed by sub tenant
under order 9 Rule 13 CPC, exceeded his own lordship’s power conferred up on him within the
jurisdiction.
4.
Because, in such circumstances, the
present special Appeal may lie before Hon’ble Division Bench, and is required
to be filed in order dilute the stigma leveled on the integrity of the counsel
appearing on behalf of respondent no. 3 and 4, the present appellants by the
learned single judge, before proceeding further before Hon’ble Supreme Court,
in order to mitigate the wrong perception recorded in the impugned judgement. Wrong
committed in recording such wrong statement on behalf of landlord by the learned
single judge is in itself a Nullity and as such the Contesting respondent no. 3
and 4 may not be directed to approach the learned single Judge.
5.
Because, if the Judgement of Hon’ble Single
Judge may be found in excess of Jurisdiction by usurpations of the power given
to him under constitution of India and the same has been passed on wholly
erroneous Consideration, the special appeal is maintainable. No statement was
given by the counsel of the appellants but the Hon’ble single Judge said that
in case the counsel will argue on falsehood of documents and represent the
petitioner as rank trespasser and thus will
argue the matter against the petitioner, his lordship will pass such
order, which he will not even recall, even if such application will be filed before
him delivery of the judgement, which has
shown on internet only on 7.10.2012 having false statement of the counsel
recorded in the said order without any rhyme or reason.
6.
Because, nothing short of the pleadings or the
inference from the pleadings and the evidence on record may suggest in order to
draw any inference , that it has been found that the petitioner could not be
evicted. Despite her being rank trespasser as being admitted in her pleading of
written statement of being sub tenant,
she filed Annexure 1 and Annexure R.A.1, having forged and fabricated documents of alleged
documents pretending consent of the
landlords for accepting her as tenant up
on the property of the respondent No. 3 and 4, which was exposed by the counsel
for the appellants.
7.
Because, the contents of paragraph no.25 of
the counter affidavit has not been replied and thereby admitted by the
petitioner in the rejoinder affidavit as uncontroverted averments, which is
reproduced as under;-
“25.
That the petitioner having been an unlawful sub-tenant without any permission
of the answering respondents, un-authorized inducted in illegal possession of
the property in dispute by respondent no.5 without any permission of the
answering respondent, on the own pleadings of the petitioner, contained in her
written statement, is unauthorised and unlawful occupant of the premises and is
neither legally affected by the ex-parte decree nor is possessed of any locus
standi to have move the application under Order 9 Rule 13 C.P.C. what so ever.”
8.
Because, In the rejoinder affidavit, another forged document
purported to be executed on 19.5.1979 has been manufactured under the forged
signature of the Respondent no. 4namely Sri Sankar Lal alone, in which the attesting
witness are shown to be the witnesses of District Jalaun and Tehsil Chhibramau,
District Farrukhabad.
9.
Because, the endorsement annexed on the 2nd page of the
said document is pertaining to some “Will” under the Notary Act, 1952 by one Sri
Prem Rudra on 19.5.1979 at serial no.37-79. Thus a device has been adopted by
the petitioner, not only to mislead this Hon’ble Court, but to commit forgery.
The petitioner has also committed a fraud upon the right of the
Applicant/deponent being the landlord of the premises in question. For the kind
perusal of this Hon’ble Court, the certified copy of the written statement
dated 14.7.1977 and certified copy of entire order-sheet of Suit no.38 of 1977
containing the order referred to above having striking the defense was filed therewith in order to substantiate the pleading of the present special
appeal.
10.
Because, the documents purported to be the agreement dated
27.3.1971, 19.5.1979 (bearing forged signature of Applicant/deponent) namely
filed as Annexure No. 1 to
writ petition and Annexure R.A. 1
respectively by the petitioner for falsely claiming/ purporting herself to be
tenant of the respondent no.4, as forged document , as the said documents by
its own reading have been manufacture in contradiction of the claim of
petitioner set- up in her written statement, an application under Section
156 ( 3) Cr. P. C. was filed before the Magistrate for taking cognizance, but
the same has been dismissed in view of availability of these forged documents before this Hon’ble
Court and on account of pendency of this Writ petition.
11.
Because,
filing the
forged and manufactured documents ( purported agreement dated 27.3.1971 and
19.5.1979) (bearing forged signature of Applicant/deponent/ plaintiff no. 2)
namely filed as Annexure No. 1 to writ petition and Annexure R.A. 1
respectively by the petitioner for falsely claiming/ purporting herself to be
tenant of the applicant/ deponent, as the said documents by its own reading
have been manufacture in contradiction of the claim of petitioner set- up
in her written statement and were filed de-novo first time in writ petition,
then Hon’ble Single judge was
not empowered to record that the decree
against petitioner is null and void.
12.
Because, Counsel for the contesting respondents requested that the
application no. 165277 of 2008 filed on behalf of contesting respondents
landlords filed on 22.7.2008 under section 193 IPC read with 340 Cr. P. C. &
article 215 of constitution having the evidence in respect of forged documents
be seen by the Hon’ble Court before proceeding in the matter to summon the
entire records of the court below in order to satisfy whether the compliance of
section 17 of Small cause Act has been done or not as sub tenant trespassers
have no right to assume the status of the tenant, but the learned single judge
declined even to look in the records of the case.
13.
Because, in view of Hon’ble supreme court judgement in Carona ltd
versus M/s paravathy swaminathan AIR 2008 SC 187 Para 45 and in re R.K.Shukla Versus Sudhirist Narain
Anandin civil appeal no. 7238 of 2005 ( decided on 12.05.2008 by Apex Court ),
since the petitioner did not comply the order fated 30.6.2008 passed in present
writ petition no.20520 of1996, it was already observed that the writ petition
would be deemed to be dismissed on the ground of non payment of rent alone, for
which the forged documents were filed , but order dated 30.6.2008 was not
complied .Thus the Impugned Judgement dated 10.9.2012 has overriding effect
upon previous orders passed on 30.6.2008 as inconsistent orders are not
permissible in one writ petition.
14.
Because the present writ
petition no.20520 of1996 was listed under the heading of old cases on 7.12.2009
, but no one appeared to argue the matter on the said date but the said order
was recalled and as such a device of hide and seek was adopted for illegal
occupation of the premises by the rank trespasser.
15.
Because, the writ petition no.20520 of1996 was listed about 50
times and was heard by other bench and there after it was dismissed for non
prosecution on 2.7.2012 when the petition was directed to be listed
peremptorily by an order 28.5.2012 but the said order was recalled without
extending the stay order.
16.
Because, counsel appearing
on behalf of respondent no. 3 and 4 the
matter may not be reopened for the purposes of summoning the records and file
of the suit of court below in execution
proceedings for the purpose of satisfying the contentions that security in
furtherance of Requirement of Section 17 of provincial Small cause Court Act ,
before the trial court before filing application Under Order 9 rule 13 of
C.P.C. was done or not.
Dated 8thOct
2012 (YOGESH
KUMAR SAXENA)
Advocate
Counsel for the Appellants
Chamber no.139, High Court,
Allahabad.
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