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1957 DIGILAW 75 (ALL)

Bishwanath Singh v. Board of Revenue

1957-02-02

CHATURVEDI, MEHROTRA

body1957
JUDGMENT Chaturvedi, J. - This is a petition under Article 226 of the Constitution challenging the legality of an order passed by the Board of Revenue. 2. The Petitioners were zamindars of the plots in suit and one Ram Datt was the tenant. Ram Datt died in 1944 and the case of the Petitioners is that he died heir-less and the plots reverted to the Petitioners. The Respondents, however, filed a suit u/s 59 of the UP Tenancy Act for a declaration that they were the tenants of the plots in question as they were the heirs of Ram Datt deceased. The suit was dismissed by the trial court and also by the Addl. Commr. in appeal. The date of decision of the Commr. is 13-9-1946. After the dismissal of the suit, the Petitioners, as zamindars, filed a suit against Respondents Nos. 3-25 for their ejectment u/s 180 of the UP Tenancy Act. This suit was decreed by the trial court on 26-1-1949 and an appeal filed by the Respondents was dismissed on 7-3-1949. There was a Second Appeal before the Board of Revenue and the Board of Revenue dismissed the Second Appeal on 13-1-1951. A review application filed by the Respondents was also dismissed on 22-10-1951. On 17-7-1951 the Respondents filed an application before the Board for leave to appeal to the Supreme Court. Notices were ordered to be issued and the application was decided nearly four years after it had been filed the date of decision being 31-3-1955. In the meantime the UPZA and LR Act had come into force on 1-7-1952. The Board held that there was no valid ground for granting leave to appeal to the Supreme Court but it was of the view that because of the pendency of the application for leave to appeal to the Supreme Court Rules 4 and 5 of the UPZA and LR Rules applied to the case and they ordered "all proceedings shall be abated". After this, the Respondents made an application u/s 144 of the CPC for regaining the possession of the plots on the ground that the suit itself had been declared to have abated and the Petitioners having obtained possession of the plots in execution of the decree, the Respondents were entitled to regain possession. After this, the Respondents made an application u/s 144 of the CPC for regaining the possession of the plots on the ground that the suit itself had been declared to have abated and the Petitioners having obtained possession of the plots in execution of the decree, the Respondents were entitled to regain possession. Objections were taken on behalf of the Petitioners to the application u/s 144 of the CPC and the case appears to have been argued before the executing court by learned Counsel of this Court. The executing court, it appears, was inclined to take the view adverse to the Petitioners. It was after this that the present petition was moved on 11-11-1955. The main prayer contained in the petition is that the order of the Board of Revenue abating the proceedings be quashed and that a writ of mandamus be issued to the Respondents not to enforce the order of the Board of Revenue. 3. Learned Counsel for the Petitioners urged two points in support of the petition. The first submission is that the application for leave to appeal to the Supreme Court filed by the Respondents before the Board of Revenue does not fall under Rule 5 of the UPZA and LR Rules, because it was an application which was filed after the expiry of the period of limitation and should, therefore, be considered as not pending. The other point is that it was not open to the Board of Revenue, while hearing an application for leave to appeal to the Supreme Court, to declare the suit itself and all subsequent proceedings to have abated. Learned Counsel for the Respondents has urged that this petition should be dismissed as it was filed after an undue delay and also because another remedy of filing a fresh suit is open to the Petitioners. He has also controverted the submissions of the learned Counsel for the Petitioners. 4. We shall deal first with the two preliminary objections just mentioned. The relevant facts as regards the first objection are that the impugned order of the Board of Revenue was passed on 31-3-1955 and the date of concurrence is 9-4-1955. An application u/s 144 of the CPC was filed before the Judicial Officer on 26-4-1955 and notice of this application was ordered to be issued on 29-4-1955. The relevant facts as regards the first objection are that the impugned order of the Board of Revenue was passed on 31-3-1955 and the date of concurrence is 9-4-1955. An application u/s 144 of the CPC was filed before the Judicial Officer on 26-4-1955 and notice of this application was ordered to be issued on 29-4-1955. The Petitioners filed an objection to the application and arguments in the case were heard by the Judicial Officer on 18-10-1955. It is after the arguments had been heard that the present petition was filed. The contention of the learned Counsel for the Petitioners is that the order of the Board of Revenue was an ambiguous order and it was interpreted by their counsel to mean that the order was really in favour of the Petitioners. The Board of Revenue nowhere said that the suit and the decrees passed in the suit had abated. What the Board of Revenue said was "all these proceedings shall be abated." These proceedings could be understood to mean the proceedings instituted by the Respondents by filing an application for leave to appeal to the Supreme Court. The order was such that it could have misled the Petitioners and their counsel and it is possible that the misunderstanding was removed when the case was argued by the learned Counsel before the Judicial Officer in October, 1955. The present petition was moved within a reasonable time of that date. We are consequently of the view that the petition should not be dismissed on the ground that it was filed after an undue delay. The other preliminary objection that the abatement of the suit does not debar the Petitioners from filing a fresh suit, and another remedy being open, this petition should not be entertained, does not appeal to us. The Petitioners filed the suit as far back as the year 1946. After a prolonged litigation the decrees passed in their favour were confirmed by the Board of Revenue on 13-1-1951. To throw them back to another suit now would cause a great hardship to them. On the facts of the case, it cannot be sad that the remedy of filing a fresh suit is either adequate or equally efficacious. 5. Coming now to the merits of the petition, the fact whether the application for leave to appeal was filed within time or not is not very clear. On the facts of the case, it cannot be sad that the remedy of filing a fresh suit is either adequate or equally efficacious. 5. Coming now to the merits of the petition, the fact whether the application for leave to appeal was filed within time or not is not very clear. No reference to that point is to be found in the judgment of the Board of Revenue and we are unable to say that the point was taken before the Board of Revenue. It the point had been taken, it was open to the Board to permit the Respondents to file an application u/s 5 of the Limitation Act and to grant that application. In view of the fact that the point was not urged before the Board, we are not inclined to entertain it in this writ petition. 6. The only point that remains for consideration now is the question whether it was open to the Board of Revenue, while hearing an application for leave to appeal to the Supreme Court, to pass an order abating the suit and the decrees passed in that suit. We do not propose to decide in this case whether an application for leave to appeal is at all entertainable by the Board of Revenue after coming into force of the Constitution. We shall process upon the assumption that the Board of Revenue could hear and decide the applicant on. The determination of the question raised rests on an interpretation of Sub-rule (1) of Rule 5 of the UPZA and LR Rules. Sub-rule (1) is as follows: Every suit or proceeding, whether pending in the court of first instance or in appeal or in revision, stayed under clauses. I to III and V. of Rule 4, shall together with appeal or revision, if any, be abated by the court or the authority before whom it may be pending after notice to parties and giving them an opportunity of being heard. A reading of the Rule shows that what has to be abated is a suit or proceeding irrespective of the fact whether the suit or proceeding is pending in the court of first instance or it is pending in appeal or in revision. The condition is that it should have been stayed under certain clause of Rule 4 but with that condition we arc not concerned in the present case. The condition is that it should have been stayed under certain clause of Rule 4 but with that condition we arc not concerned in the present case. If a suit or other proceeding were pending, even in the appellate or revision courts then the entire suit or proceeding could be abated. But the abatement could be ordered only of the suit or proceeding which was pending. The question is whether it can be said that the suit filed by the Petitioners u/s 180, UP Tenancy Act was pending in appeal or revision because the application for leave to appeal was pending. The appeal had been dismissed by the Board and no question of filing any revision could arise. No case has been brought to our notice in which it has been held that when an application for leave to appeal to the Supreme Court, is made it can be said that it is the suit which is pending in appeal or revision in the court. On the other hand, one of the learned Judges of this Court held in the case of Hira Lal v. Mst. Bibia 1955 ALJR 614 that when only an application of review of judgment of the Board of Revenue is pending, it is not open to the Board to declare the suit itself to have abated. In the case before us what was pending was an application for leave to appeal to the Supreme Court and we are of the opinion that it cannot be said that when such an application is pending, it is the suit itself which is pending in appeal or revision. We think that there is manifest error in the judgment of the Board of Revenue. The Board of Revenue appears to have decided the matter in favour of the Respondents because the Supreme Court in a case, in which special leave had been granted, had abated a suit filed u/s 180, UP Tenancy Act. But the position in the two cases is very different. In the case before the Supreme Court, special appeal had been entertained and an appeal was pending before that Court. There could thus be no doubt that the suit was pending in an appeal before the Supreme Court. But the position in the two cases is very different. In the case before the Supreme Court, special appeal had been entertained and an appeal was pending before that Court. There could thus be no doubt that the suit was pending in an appeal before the Supreme Court. But before the Board of Revenue, in the present case, only an application for leave to appeal was pending and till that application had been allowed and the appeal declared as admitted, it could not be said that any appeal had been pending before any court. The Board really was of the view that the application for leave should not be allowed as there was no ground for allowing the same. There could thus be no appeal in the case at all. 7. The result is that this petition is allowed and a writ of certiorari shall issue quashing that portion of the judgment of the Board of Revenue dated 31-3-1955 / 19-4-1955 which declared all the proceedings in the suit to have abated. In the circumstances of the case we direct the parties to bear their own costs.