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1976 DIGILAW 304 (ALL)

Rahmat Khan v. Pitamber

1976-04-23

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, Member. - This is a revision against the order of Sri. S.H. Hasan, Additional, Commissioner Faizabad Divn. Faizabad Act 26-8-1970 passed in revision No. 15/513-1969. Gonda against the order dated 12-4-69 passed by the Sub-Divisional Officer, Gonda in No. 75 under section 229-B/209 U.P.Z.A. and L.R. Act. 2. I have heard the learned counsel for the revisionist and have gone through the record. The opposite parties have not appeared in spite of due service. 3. Pitamber, Kesho Ram and Nibare had filed suit under section 229-B/209 Z.A. and L.R. Act on 26-10-67. This suit was dismissed in default by the trial court on 11-3-68. Subsequently the suit was restored by the trial court on 21-4-69. A revision against the order of the trial court along with the restoration was field before the learned Additional Commissioner. During the pendency of the revision an objection was filed before the Addl. commissioner that Nibare had not been made a party in the revision and, therefore, the revision was defective. The revisionist on the other hand contended that Nibare had died on 8-11-64 and, therefore, he was not a necessary party to the revision. The learned Additional Commissioner has held that Nibare died on 12-6-69 i.e. say he was alive when the revision was filed. As Nibare had not been made party to the revision the learned Additional Commissioner held that the revision was defective and ordered that the revision may be deemed to be closed. Rahmatulla Khan who was defendant no. 1 in the original suit as come up in revision against this order. 4. The learned counsel for the revisionist has contended that the learned Additional commissioner has acted illegally and with material irregularity in the exercise of this jurisdiction in passing as ambiguous order unknown to the Civil Procedure Code, that the finding that Nibare died on and 12-6-69 and not on 8-11-64 is perverse and that the learned Additional Commissioner exceeded his jurisdiction in deciding the revision himself instead do recommending the matter to the Board of revenue of final orders. 5. I may take up the last ground first. Chapter 7th of the Revenue Court Manual prescribes the procedure for appeals, reference and revisions. 5. I may take up the last ground first. Chapter 7th of the Revenue Court Manual prescribes the procedure for appeals, reference and revisions. Under rule 186 in hits Chapter, where the decree or order sought to be revised was passed by the Commissioner the application shall presented to the Board in the manner prescribed for the presentation of appeals, but if such decree or order has been passed by a court subordinate to the Commissioner it shall be presented to the Commissioner with a request that it may be forwarded to the Board with his recommendation for orders. Under Rule 188 the Commissioner may send for the record and hear the applicant or the parties in the case and thereafter make such recommendations to the Board as he may consider proper. The Board shall pass the final orders on the revision under RUle 189. It is thus evidence that the learned Addl. commissioner has exercised jurisdiction not vested in him in deciding the revision without referring it to the Board. Thus quite apart form the question whether the order passed by the learned Additional Commissioner is an order unknown to the Civil Procedure Code it is entirely without jurisdiction. 6. The result is that I allow the revision, set aside the order of the learned Additional Commissioner and direct that he shall now proceed to hearing and dispose of the revision against the order of the trial court is accordance with Rules 186 to 189 revenue Court Manual. .