IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 2020 of 2010 (M/S) Furkan Ali and others ..… Petitioners Versus Hashim Ali and others ..… Respondents Shri Sharad Sharma, Senior Advocate assisted by Shri Kovid Bhatt, the learned counsel for the petitioners. Shri Piyush Garg, the learned counsel for the respondents. Hon’ble Tarun Agarwala, J. Sahiuddin and Jumme Khan are cousins having a common grandfather who owned land and, upon the death of the grandfather, the land devolved upon the father of Sahiuddin and Jumme Khan. Two suits u/S 229-B of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter referred to Act) was filed for declaration that the plaintiffs be declared bhumidhar over the land in question on the basis of their possession. One suit No. 13 of 1980 was filed by Jumme Khan praying that he should be declared bhumidhar over 0.15 acres in khasra No. 460 and 0.59 acres in khasra No. 463. In this suit, Sahiuddin was not impleaded as a party. Similarly, suit No. 14 of 1980 was filed by Sahiuddin praying that he should be declared bhumidhar of 0.75 acres in Khasra No. 460 on the basis of his possession. No objection was filed by the State in the aforesaid two suits and, accordingly, both the suits were decreed by a separate judgment on 30th September, 1981, pursuant to which, their names were recorded as bhumidhar in the revenue record. After 12 years, Jumme Khan filed an application under Order 9 Rule 13 of the C.P.C. for the recall of the ex-parte order dated 30th September, 1981. This application was filed in suit No. 14 of 1980 on the ground that an ex-parte decree was passed and that he is the necessary party since he also holds a portion of the land in khasra No. 460. This application was rejected by an order dated 11th June, 1993, against which, Jumme Khan filed an appeal 2 u/S 331 (3) of the Act which was allowed by an order dated 28th June, 2000. The appellate court set aside the order dated 11th June, 1993 and the decree dated 30th September, 1981 and directed Sahiuddin to implead Jumme Khan as a necessary party. Sahiuddin, being aggrieved, filed a second appeal u/S 331 (4) of the Act. During the pendency of the second appeal, Sahiuddin died in the year 2002 and Jumme Khan in the year 2004. The heirs of Sahiuddin and Jumme Khan were impleaded by an order dated 20th March, 2009. When the appeal came up for hearing, it was found that the second appeal was not maintainable u/S 331 (4) of the Act and, accordingly, a prayer was made to convert the second appeal into a revision u/S 333 of the Act. The prayer of the appellant was not opposed and, consequently, the Court directed the appellant to convert the appeal into a revision. The revision was thereafter heard and the same was allowed by an order dated 20th October, 2010 and the appellate order dated 28th June, 2000 was set aside. The heirs of Jumme Khan, being aggrieved by the said order, has filed the present writ petition. Heard Shri Sharad Sharma, the learned senior counsel assisted by Shri Kovid Bhatt, the learned counsel for the petitioners and Shri Piyush Garg, the learned counsel for the opposite parties. The revisional court while allowing the revision held that the cousins filed two suits without impleading each other and were aware of the filing of the suits. In the suit filed by Jumme Khan, he admitted that Sahiuddin was in possession of 0.75 acres of land in Khasra No. 460 and, since he had knowledge of the suit filed by Sahiuddin, the application under Order 9 Rule 13 was patently erroneous and could not have been allowed since he was aware of the proceedings. 3 Shri Sharad Sharma, the learned Senior Counsel submitted that admittedly an ex-parte decree dated 30th September, 1981 was passed against Jumme Khan and being in possession of a portion of khasra No. 460, he was a necessary party and, consequently, the petitioner had rightly moved an application under Order 9 Rule 13 of the C.P.C which was rightly allowed by the appellate court and wrongly rejected by the revisional Court. The learned counsel further submitted that in view of the provision of Section 333 of the Act, an appeal could not be converted into a revision. The learned counsel submitted that a revision could only be filed where no appeal lay or where an appeal lay but was not preferred and, consequently, submitted that when an appeal was filed u/S 333 (4), the bar of filing a revision came forward and, on this ground, the appeal could not be converted into a revision. In response, Shri Piyush Garg, the learned counsel for the opposite parties submitted that the application under Order 9 Rule 13 was not maintainable since the petitioner was not arrayed as a defendant and that the provision of Order 9 Rule 13 of the C.P.C. contemplates the existence of a defendant in order to move such an application and does not contemplate the application to be filed at the behest of a stranger. The learned counsel submitted that in exceptional cases where a fraud has been committed, a third party, namely, a stranger could apply under Order 9 Rule 13 of the C.P.C. The learned counsel submitted that in the present case, no plea of fraud was ever raised and the only contention raised in the application under Order 9 Rule 13 of the C.P.C., was that the petitioner was a necessary party since he held land in khasra No. 460. The learned counsel also submitted that since the second appeal preferred by the opposite party was not maintainable under Section 331 (4) of the Act, the same was rightly converted into a revision. 4 In support of his submission, the learned counsel for the petitioners has placed reliance upon the decisions in Suraj Dev Vs. Board of Revenue AIR 1982 ALL 23, Ramjisingh Bhulian Singh Vs. Tarun K. Shah and other, 2002 AIHC 4035, Tara Shankar Vs. Madan Mohan Pathak & Others, 1994 (1) CCC 292 (Allh.) and Vinay Kumar Chowdhary Vs. Ghanshyam Narain Kohli, 2001 (1) ARC 461, in which, it has been held that a stranger could apply for setting aside an ex-parte decree when the said decree was obtained by a fraud. On the other hand, the learned counsel for the opposite parties has placed reliance upon the decisions in Smt. Santosh Chopra Vs. Teja Singh, Bhojai Vs. Salimullah, AIR 1967 ALL 221, Anirudh Singh Katoch Vs. Addl. District Judge/F.T.C.-I, Nainital and others, 2005 UAD 228, First Appeal No. 280 of 2001 decided on 25.11.2010 and Surya Kumar Vs. District Judge, Mirzapur AIR 1991 (Alld) 75, in which, it was held that only a defendant could apply for setting aside an ex-parte decree by moving an application under Order 9 Rule 13 and a person who is not a party, even though, he is interested in the suit is not entitled to apply for setting aside the decree by moving an application under Order 9 Rule 13 of the C.P.C. and that the remedy in such cases was to file a separate suit. Having heard the learned counsel for the parties at some length and, having perused the case laws cited on the question, this Court finds that the petitioners had filed an application under Order 9 Rule 13 of the C.P.C. to set aside the ex-parte decree on the ground that he was in possession of a portion of plot No. 460 and, consequently, is a necessary party. The court has perused the application and finds that no plea of fraud was raised. The court further finds that the petitioners and the opposite parties are cousins and their predecessors had filed two suits simultaneously praying for a declaration that they should be made bhumidhar on 5 the basis of their respective possession. The predecessor of the petitioners Jumme Khan in his suit had categorically stated that he is in possession of 0.15 acres in plot No. 460 and that the predecessors of opposite party Sahiuddin was in possession of 0.75 acres in plot No. 460. Both the suits were decreed on the same day. The courts below have found that the predecessor of the petitioners had personal knowledge of filing of the suit by Sahiuddin and, therefore, the application under Order 9 Rule 13 of the C.P.C. was patently misconceived and was an abuse of the process of the court. In the absence of fraud being alleged and in view of the fact that the predecessor of the petitioners had knowledge of an ex- parte decree in suit No. 14 of 1980, the Court is of the opinion that the application under Order 9 Rule 13 of the C.P.C. filed at the behest of the predecessor of the petitioner was not maintainable since he was not a defendant in that suit. The entire exercise made by the predecessor of the petitioners was nothing but an abuse of the process of the Court and, on this ground itself, the petitioners are not entitled for any relief. This Court is further of the opinion that where the appeal filed by the petitioner was not maintainable, the said appeal could always be converted into a revision by the leave of the Court. In the present case, the Court finds that a request was made for conversion of the appeal into a revision which was not opposed and, consequently, the Court granted the leave to convert the appeal into a revision. In Om Prakash Vs. Dwarka Prasad, AIR (MP) (2005) 40, it was held that in the event the appeal filed was within the period of limitation, the same could be converted into a revision or vice-versa. In Bahori Vs. Vidya Ram, AIR 1978 299, it was held that the Court had an inherent power to make such orders as may be necessary for the ends of justice and that the power was 6 discretionary and could be exercised in a proper case in the interest of justice or to prevent the abuse of the process of the Court. In Bar Council of India New Delhi Vs. Manikant Tiwari, AIR 1983 All. 357, the Court held that since the appeal was not maintainable, the Court rightly allowed the appeal to be converted into a revision. Similar view was held by the Kerala High Court in the case of N. Karuppan Vs. M. Sankaran Naif, AIR 1973 Kerala 28. In the light of the aforesaid, the Court is of the opinion that the order of the Court converting the appeal into a revision does not suffer from any error of law. In view of the aforesaid, the writ petition is dismissed summarily. (Tarun Agarwala, J.) Dated 6th December, 2010 Shiv