Rakesh Tiwari, J. - (1.) HEARD counsel for the parties and perused the record. The brief facts of the case are that Misc. Appeal No. 42 of 1987, Bachcha Singh v. Parmeshwar Bhaiya and 136 others, related to the land of village Taranpur arose out of O.S. No. 110 of 1987 filed by Bachcha Singh for restraining Parmeshwar Bhaiya and 136 others from interfering with the peaceful possession of tenure -holders of village Taranpur.
(2.) THE other appeal Misc. Appeal No. 85 of 1987 (previously defective appeal No. 32 of 1987) Ram Chandra Lal also related to refusal of interim injunction but in O.S. No. 43 of 1987 filed by him for cancellation of sale -deed executed by him in favour of Parmeshwar Bhaiya of land in village Haibatpur. Thus the nature and subject matter of the two suits were different i.e. the suit No. 110/87 by Bachcha Singh was for injunction, while the other suit No. 85/87 by Ram Chandra Lal was for cancellation of sale -deed executed by him. They related to different properties situate in different villages. The facts, subject matter, nature, villages and land involved and the parties, except the defendant Parmeshwar Bhaiya and his relatives of the two suits in the two appeals were totally different. Bachcha Singh and Ram Chandra Lal have no concern with each other or the suit or appeal of another. On a particular date when defective Misc. Appeal No. 32 of 1987 Ram Chandra Lal v. Parmeshwar Bhaiya came up for orders, the learned Advocate for Ram Chandra Lal himself prayed that the case may be heard with the Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others. Bachcha Singh had nothing to do with the appeal of Ram Chandra Lal and was neither a party in this suit or that appeal, nor was concerned with the land involved in the suit of Ram Chandra Lal or with injunction involved in defective Misc. Appeal No. 32 of 1987, later Misc. Appeal No. 85 of 1987. The submissions for the petitioner are as follows: (a) The application for restoration No. 193 of 1987 Ram Chandra Lal v. Parmeshwar Bhaiya (Annexure -5) was made in defective Misc. Appeal No. 32 of 1987) (later registered as Misc. Appeal No. 85 of 1987) only. This application was not concerned with Misc. Appeal No. 42 of 1987, Bachcha Singh v. Parmeshwar Bhaiya and 136 others and no prayer was made for it. The judgment in Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others could not be set aside on this application. (b) The petitioner nor the plaintiffs and defendants of his suit (except Parmeshwar Bhaiya and his relatives which alone were common) were never impleaded in the application. No notice of the application was served on them. The proceedings in Misc. Application No. 193 of 1987 Ram Chandra Lal v. Parmeshwar Bhaiya did not relate to Bachcha Singh or other plaintiffs and the defendants in O.S. No. 110 of 1987 out of which Misc. Appeal No. 42 of 1987 arose. (c) The impugned order has been passed without hearing the petitioner or any of the parties in this appeal. The petitioner or parties of his suit or appeal were neither impleaded nor heard. The proceedings and the order are contrary to the fundamental principles of natural justice and fair play and are null and void, so far as Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others are concerned. (d) There was no question of the order in Misc. Case No. 193 of 1987 (which was filed only in defective Misc. Appeal No. 32 of 1987, later registered as Misc. Appeal No. 85 of 1987) affecting the other appeal, in which the suit parties, properties and nature were all different. (e) The order of the District Judge dated 29.5.1987 in Misc. Appeal No. 42 of 1987 was subject matter of two writ petitions in this court namely Writ Petition No. 9761 of 1987 Parmeshwar Bhaiya v. District judge and others and Writ Petition No. 863 of 1988 Ram Parivesh Singh v. Additional District judge and others. These writ petitions and also Special Leave Petition were dismissed and the order of the District Judge dated 29.5.1987, in Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others was confirmed. It could not be set aside by the District Judge, thereafter. (f) No reasons have been given for setting aside the order of the District Judge in Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others except that it was connected with the other for hearing together. This no reason for setting aside the order in this appeal about which there was no complaint in which all the parties had been heard, and the appeal decided on merits and the order confirmed by higher Courts. (g) Therefore, it has been prayed that the order of the District Judge, Ballia dated 25.2.1989 so far as it concerns Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others be quashed. The submissions of the respondents are as follows: (1) The father of respondent Nos. 2 to 5 filed a Civil Suit No. 42 of 1987 for cancellation of sale -deed dated 2.12.86 against Parmeshwar Bhaiya but injunction application in the aforesaid case was rejected. Therefore, Ram Chandra Lal filed Misc. Appeal before District Judge, Ballia which was registered on 25.5.1987 and thereafter Ram Chandra Lal filed writ petition No. 9761 of 1987 which was also dismissed by this Court on 6.7.87. (2) That the present petitioner also filed a suit No. 110 of 1987 for injunction and has also filed Misc. Appeal No. 42 of 1987 against injunction order and Addl. District Judge has allowed the appeal and granted injunction in favour of the petitioner. Therefore, the respondent filed writ petition No. 863 of 1988 before the High Court and this writ petition was dismissed on 9.3.88. Thereafter the respondent filed SLP before Hon'ble Supreme Court which was dismissed on 1.12.88 hence the respondent District Judge has no right to set aside the order dated 25.5.87 on the restoration application of respondent in Restoration Application No. 193 of 1987 in respect of Misc. Appeal No. 42 of 1987 because the order dated 25.5.87 in favour of the petitioner has become final by High Court as well as the Supreme Court and can not be reopened, hence, the writ petition is liable to be allowed.
(3.) IT is not in dispute between the parties that both these appeals were decided on particular facts of their case. The Misc. Appeal No. 42 of 1987 Bachcha Singh v. Parmeshwar Bhaiya and 136 others was allowed after hearing both the parties on merits. Misc. Appeal No. 85 of 1987 (previously defective appeal No. 32 of 1987 in which the petitioner had no concern nor was he a party thereto) was dismissed without the counsel who was present arguing it.;