Thursday, October 11, 2012

writ petition No. 20205 of 1996 passed in excess of power and without jurisdiction by Hon’ble Justice Sudhir Agrawal .


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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