Research › Browse › Judgment

Allahabad High Court · body

1976 DIGILAW 641 (ALL)

Sarjoo Dei v. Gur Charan

1976-09-29

H.N.AGARWAL

body1976
JUDGMENT H.N. Agrawal, Member. - These two revisions have been filed against the order of Sri. S.M. Hasan, Additional Commissioner, Faizabad Division, Faizabad dated July 7, 1971 in revisions Nos. 44/636 and 45/641 Bara Banki. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The facts are as follows: Srimati Sarjoo Dei, defendant in two suits under Section 229-B/209, U.P.Z.A. and L.R. Act filed by Gurcharan against her, had moved the Additional Commissioner in revision against the order of the trial court dated October 23, 1969. On January 1, 1971 the learned Additional Commissioner made a reference to the Board of Revenue that both the revisions Nos. 44/636 and 45/641 may be dismissed in default of the revisionist. Srimati Sarjoo Dei filed an application for restoration on January 14, 1971. The learned Additional Commissioner, however, without deciding the restoration application has passed the impugned order dated July 7, 1971 to the effect that Gurcharan had died and the trial court should not inquire and report who the legal heirs of Gurcharan deceased were. 4. The learned counsel for the revisionist has contended that after January 1, 1971 the learned Additional Commissioner had become functus officio and, therefore, his order dated July 7, 1971 was without jurisdiction. The learned counsel has contended that the Additional Commissioner being a Court of reference had no jurisdiction to pass any substantive order except that of making reference to the Board of Revenue. The contention of the learned counsel is correct. A revision against an order of a subordinate Court is presented to the Commissioner, but the Commissioner is not empowered to pass any substantive orders. Under Paras 187 and 188 of the Revenue Court Manual the Commissioner is merely empowered to forward revision to the Board alongwith such recommendations as he may consider proper. Thus, in the present case, the learned Additional Commissioner having already made his recommendation to the Board of Revenue on January 1, 1971 that the revisions may be dismissed, could not now pass any substantive orders in the case for determining who the heirs of the deceased Gurcharan were. It may be noted that Gurcharn had died not during the pendency of the revisions but during the pendency of suits in the trial court. It may be noted that Gurcharn had died not during the pendency of the revisions but during the pendency of suits in the trial court. The question whether the trial court had determined and impleaded the heirs of the deceased Gurcharan or had failed to do so would have been considered by the Board of Revenue when the references came to the Board of hearing. The learned Additional Commissioner having made his recommendations to the Board had no jurisdiction thereafter to try to remove the lacuna in the case by directing to determine the heirs of the deceased. Thus, the impugned orders of the learned Additional Commissioner are without jurisdiction and erroneous in law, and are hereby set aside. 5. Now remains the recommendation of the learned Additional Commissioner dated January 1, 1971 to the effect that the revisions Nos. 44/636 and 45/641 be dismissed in default of the revisionist. Having heard the learned counsels for the parties, I hold that this recommendation cannot be accepted. The revisionist Srimati Sarjoo Dei had shown sufficient and convincing reason in her application dated January, 14, 1971 for restoration of the revisions. I am satisfied that she was prevented from appearing before the Additional Commissioner on the date fixed on account of a proper and good reason. It may be noted that the plaintiff Gurcharan himself had defaulted in appearance in the trial court on December 20, 1969 yet the trial court had restored the suit on his showing cause for his failure to appear. Srimati Sarjoo Dei is entitled to be treated on equal basis. Thus, I reject the recommendation of the learned Additional Commissioner to dismiss the revisions in default. The revisions shall now be heard by the learned Additional Commissioner on merits under Para 188 of the Revenue Court Manual. Thereafter the learned Additional Commissioner shall submit his revised recommendations to the Board under Para 189 of the Manual. 6. This order governs both the connected Revisions Nos. 299 and 300 of 1970-71 district Bara Banki.