Shishir Kumar - (1.) -The present writ petition has been filed for quashing the judgment and order dated 15.9.2000 (Annexure-8 to the writ petition) passed by the District Judge, Gorakhpur, respondent No. 1 in Miscellaneous Appeal No. 19 of 2000, Akhilesh Pratap Singh v. Shiv Bachan Singh and others. Further issuing a writ in the nature of certiorari quashing the judgment and decree dated 25.5.1995, passed by the Civil Judge (Senior Division), Gorakhpur in Original Suit No. 270 of 1984, Sri Ram Singh and others v. Shiv Bachan Singh and others, (Annexure-3 to the writ petition).
(2.) THE facts arising out of the present writ petition are that the respondent Nos. 9 and 10 along with the petitioners instituted a Suit No. 270 of 1984 in the Court of respondent No. 2 and against respondent Nos. 3 to 8 praying for a permanent injunction restraining the defendants from interfering in their possession over the land in dispute. Admittedly, on the date when the suit was filed, the petitioners were minors, therefore, they were represented by respondent No. 10 who was their mother and next friend. In the aforesaid suit, the petitioners were plaintiff Nos. 3 and 4 respectively while respondent Nos. 9 and 10 were plaintiff Nos. 1 and 2 respectively. In the aforesaid suit, Sri Om Prakash Sinha and one Deo Prakash Rai, advocates were engaged as counsels for the plaintiffs by respondent No. 10 and as the petitioners were minor, as such, they could not and did not independently engage another advocate as their counsel. On 30.1.1985, the respondent No. 9 (plaintiff No. 1) filed an application (Paper No. 12-ka) stating that he has got no interest in the suit property and as such, he is not interested in pursuing the Original Suit No. 270 of 1984 and as such, has prayed for dismissal of the said suit against the defendants so far as respondent No. 9 was concerned. THE aforesaid application was never disposed of by the Court. On 21.2.1995, the respondent No. 10 that is plaintiff No. 2 filed an application (Paper No. 84 A-2) stating that the petitioners with plaintiff Nos. 3 and 4 have become major and prayed that above fact may be recorded in the case. That on 10.3.1995, the trial court that is respondent No. 2 directed that an endorsement to that effect be made that the petitioner has become major. THE order dated 10.3.1995 was passed by the trial court in the absence of the petitioners which is apparent from the order sheet of the suit. On 10.3.1995, itself paper No. 85 (Ka-2) alleged to be a compromise between all the parties to the suit (including the petitioners) and allegedly the signatures of all the parties including the petitioners were filed. THE same was verified on the same date, i.e., 10.3.1995 and during verification of the compromise all parties to the suit except the petitioners were present and the petitioners have been shown to be represented by one Sri Hari Nandan Srivastava, advocate. THE aforesaid fact is clear from the order sheet and the endorsement to that effect by the Civil Judge (Senior Division) has been made. A copy of the order sheet has been filed by the petitioners as Annexure-2 to the writ petition. Petitioners further state that the petitioners were ignorant of any of the above proceedings going before the trial court and they have never entered in any compromise regarding the suit property. The signatures of the petitioners on the compromise are forged and the petitioners have never signed on paper No. 85 (Ka-2) and the petitioners have never engaged any advocate as their counsel in the Original Suit No. 270 of 1984. In fact as the petitioners having no knowledge regarding the pendency of the proceedings which was going on before the trial court. On 13.3.1995, the respondent No. 10 moved an application stating that the respondent Nos. 3 to 8 fraudulently obtained her thumb impression on certain papers and, as such, before passing any order she may be afforded an opportunity. The trial court fixed 25.3.1995. On 25.3.1995, the case was adjourned to 12.4.1995. 12.4.1995 was a public holiday, so it was adjourned to 15.4.1995 and on 15.4.1995, a date was fixed, i.e., 4.7.1995. Before 4.7.1995, the respondent Nos. 3 to 8 moved an application for an early date and the date was preponed to hearing on 4.5.1995 and on 4.5.1995, the date was fixed to 25.5.1995. The petitioners had no knowledge that any proceedings are pending as no notices were issued to the petitioners informing them about the said proceedings, therefore, the petitioners were not present. By order dated 25.5.1995, the respondents have disposed of the Original Suit No. 270 of 1984 in terms of compromise allegedly to be entered into by the parties to the suit. A copy of the same has been filed as Annexure-3 to the writ petition. On 28.5.1995, when the petitioners came to know regarding the order dated 25.5.1995 filed an application under Section 151, C.P.C. stating therein that the order dated 25.5.1995 has been passed fraudulently and has been obtained by the respondents and petitioners have never engaged any advocate as their counsel in the case nor had they signed any compromise and as such has requested to recall the order dated 25.5.1995. An application to that effect which was numbered as Paper No. 4C is annexed as Annexure-4 to the writ petition. The trial court by order dated 19.12.1998 has recalled the judgment and decree dated 25.5.1995 and restored the case to its original number. A copy of the same has been filed as Annexure-5 to the writ petition. From the perusal of the order dated 19.12.1998, it clearly goes to show that the trial court has taken into consideration the two main relevant facts that though the application which was filed for compromise signatures of the petitioners are there but during verification of the compromise which was done on the same day, i.e., on 10.3.1995, the petitioners were not present. The order sheet dated 10.3.1995 does not contain the signatures of the petitioners. The paper No. 85Ka-2 has also been singed by the respondent No. 9 though he had already filed a paper No. 12 (Ka) praying that his suit against the defendants may be dismissed.
(3.) AGGRIEVED by the order dated 19.12.1998, the respondent Nos. 3 to 8 filed a Civil Revision No. 41 of 1999, which was allowed by the IIIrd Additional District Judge, Gorakhpur, vide its judgment and order dated 25.9.1999. A copy of the same has been filed as Annexure-6 to the writ petition. From the perusal of the judgment passed by the appellate court shows that the revision instituted by the respondents was allowed by quashing the order dated 19.12.1998 only on the ground that against the judgment and decree dated 25.5.1995 an application under Section 151, ?.P.C. was not maintainable and proper course for the petitioners was to file an appeal under Order XLIII, C.P.C. In view of the aforesaid judgment, the petitioners instituted a miscellaneous appeal under Order XLIII, which was registered and numbered as Miscellaneous Appeal No. 19 of 2000. The respondents vide its order dated 15.9.2000 dismissed the appeal filed by the petitioners. A copy of the same has been filed as Annexure-8 to the writ petition. AGGRIEVED by the aforesaid order, the petitioners have filed the present writ petition. The writ petition was entertained and respondents were granted time to file counter-affidavit and it was also directed to maintain the status quo.;