Decided on July 11,2013

Mahant Om Prakash Appellant
Addl District And Sessions Judge, Haridwar And Others Respondents


- (1.) After transfer of the case from Allahahad High Court, notice was sent to respondent no.3. Office has reported on 06.03.2006 that respondent no. 3 was served personally. When respondent no.3 did not turn up, this Court again sent notice to respondent no.3 and it was reported that un-served envelope received back with the report that respondent no.3 was not available on the address given. Again, notice was sent and office has reported on 07.07.2011 that respondent no.3 has refused to take notice. Thus, service of notice upon respondent no.3 found sufficient. Notice was also sent to respondent no.4 several times, but every time it was reported that respondent no.4 has left the address. Thereafter, on 04.11.2011 an order was passed permitting the petitioner to take steps for service upon respondent no.4 by way of publication. After publication of notice, Mr. J.C. Belwal, Advocate has put in appearance for respondent no.4.
(2.) Briefly stated that one Mahant Suteh Prakash instituted a JSCC Suit No. 42 of 1978 for ejectment, arrears of rent and damages against respondent no.3 in the Court of Civil Judge/Judge, Small Causes Court, Roorkee. It was claimed on behalf of plaintiff that the defendant has been a tenant of the accommodation in question at a monthly rent, but he has not paid the rent from 01.05.1974 and, therefore, a notice was given to the defendant on 03.12.1975, and thereafter, when the rent became due from 01.05.1974 to 30.06.1978, a notice was again given on 08.07.1988 and thereafter, suit was instituted. The respondent no.3/defendant filed his written statement in which he accepted himself to be the tenant of the plaintiff and the dispute was raised in respect of payment of rent. During the pendency of the suit, the plaintiff died on 16.04.1986 and, therefore, an application was moved on behalf of the petitioner for substitution under Order 22 Rule 3, read with Section 151 C.P.C. The said application was moved on behalf of the petitioner on the basis of the registered Will dated 21.03.1984, executed by the deceased plaintiff in favour of the petitioner. In support of his version, the petitioner filed the registered Will dated 21.03.1984 and examined himself and the attesting witness-Rajendra Kumar Jain. Respondent no.3 filed objection against the petitioner's claim regarding impleadment as heir of the deceased plaintiff on the ground that one Jeevan Prakash is the heir of the plaintiff. The Will, as executed in favour of the petitioner, was also disputed by the defendant. The JSCC, accepted the genuineness of the Will and held the petitioner to be the heir of the deceased plaintiff and allowed the application for substitution on 08.01.1988. The defendant/respondent no.3 preferred revision before the District Judge and the Addl. District Judge, Saharanpur dismissed the revision on 12.07.1989. Thereafter, on 08.01.1991, an application was moved by respondent no.4 under Order 1 Rule 10, read with Section 151 C.P.C. It was claimed by respondent no.4 that the land in dispute is plot no. 156 (1-6-0) of which the original owner was the plaintiff & Mahant Tirthanand. It was claimed that Tirthanand executed a Will on 18.09.1953 to Sarvanand, who executed a Will on 25.02.1977 in favour respondent no.4. It was claimed by respondent no.4 that his mutation has been effected in the papers and objection of plaintiff was rejected. It was further claimed that the plaintiff had already filed a suit for injunction against the respondent no.4 i.e. original Suit No. 139 of 1988 before the Civil Judge and the defendant Ghanshyam had also filed a suit no. 54 of 1989 against Narain Dass. On the basis of this fact, respondent no.4 claimed his impleadment for getting his rights adjudicated. The petitioner filed objection to said impleadment application with the averment that the defendant/respondent no.3 admitted himself to be the tenant of plaintiff. In the year 1947, Tirthanand claimed himself to be the Mahant of Kamal Dass Ki Kutia, then Advit Prakash, the predecessor of the plaintiff filed Original Suit No. 11 of 1947 against Tirthanand against the claim of Mahant of Kamal Dass Ki Kutia. The dispute was referred to the Panchat and Tirthanand was found not to have any concern and Mahant of the Kutia and the suit was decided accordingly. In his objection, the petitioner also denied the Will dated 18.09.1953 and 25.02.1977. It was also stated that the name of Narain Dass over certain properties were fraudulently recorded behind the back of the plaintiff/petitioner, but all those orders have been finally set-aside and name of the petitioner has already been entered in the record over the property in question and other properties. It was further stated that the suit is pending since 1978 and the death of the plaintiff also took place on 16.04.1986, but the present application has been moved on 08.01.1991, which is malafide and misconceived. The JSCC allowed the application of respondent no.4 vide order dated 18.02.1992 and against said judgment, a revision was filed by the petitioner which was also dismissed by the Addl. District Judge, Haridwar vider order dated 23.11.1992. Against those two judgments, present writ petition was filed before the Allahabad High Court on 17.03.1992. The Allahabad High Court heard the matter on 26.03.1993 and passed order staying further proceeding of Case No. 42 of 1978. Since then, instant writ petition is also pending and the proceedings in suit since 1978 are stayed.
(3.) Delay in hearing of writ petition occurred due to non-appearance of respondent nos. 3 & 4. Ultimately, the respondent no. 3 refused to accept the notice, whereas respondent no.4 was served by way of publication.;

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