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1977 DIGILAW 527 (ALL)

Bhanu v. Surajdeo

1977-10-05

J.S.GUPTA

body1977
JUDGMENT J.S. Gupta, M. - This revision was filed on Aug. 12, 1971 against the order and judgment, dated June 17, 1971 passed by the learned Additional Commissioner, Meerut Division. 2. Surya Deo instituted the suit under section 209 of the U.P.Z.A. and L.R. Act. One of the issues involved was whether the plaintiff was the adopted son of Chaudhary Raghubir Singh. The trial court answered this issue in the negative and on that basis alone held that the plaintiff was not Sirdar and not entitled to sue. It accordingly dismissed the suit. On appeal, the learned Additional Commissioner reversed the finding of the trial court on this issue and remanded the case to it for deciding other issues and final disposal of the case on merits. Bhanu and another have now come up before the Board. 3. An application was filed by the learned counsel for the revisionist on December 15, 1975, praying that the revision be converted into a second appeal. Another application was subsequently moved on December 19, 1977, praying for the conversion of the revision into a First Appeal from Order under Order XLIII, Rule 1(u) read with Section 104 of the Civil Procedure Code on August 11, 1977. The learned counsel for the revisionist did not press his former application for conversion of the revision into a second appeal, and it was accordingly dismissed. 4. In support of his application for converting the revision into a F.A., F.O., the learned counsel argued that Section 331(3) of the U.P.Z.A. and L.R. Act provides that an appeal shall lie to this court from an order under Order XLIII, Rule 1, Civil Procedure Code. In support of his argument he relied upon the view of the Hon'ble High Court in Civil Misc. Writ No. 3838 of 1969. Ram Asrey v. Ram Kripal and others and filed a certified copy of the Hon'ble court's judgment dated August 5, 1971. He also placed reliance on 1974 B.D. page 1 (Supplement). 5. The learned counsel for the opposite party argued that only a revision would lie. He cited 1965 R.D. 37, and 1969 R.D. 385. According to him, the judgment of the Hon'ble High Court related to a different set of circumstances. He said that First Appeal from Order is not contemplated in the Schedule appended to the U.P.Z.A. and L.R. Act, and would , therefore not lie. He cited 1965 R.D. 37, and 1969 R.D. 385. According to him, the judgment of the Hon'ble High Court related to a different set of circumstances. He said that First Appeal from Order is not contemplated in the Schedule appended to the U.P.Z.A. and L.R. Act, and would , therefore not lie. He further pleaded that even if an appeal lay, it had become time-barred on the date when the application for conversion was moved. 6. The learned counsel for the petitioner submitted in rejoinder that the judgment of the Hon'ble High Court is fully applicable to the circumstances of the present case. He stated that the revision was filed within limitation and there is no question of the F.A., F.O, being time-barred, because the conversion of the revision into F.A.F.O. will date back to the date of the filing of the revision itself. He also cited another decision of the Hon'ble High Court as published in 1972 A.W.R. 323. 7. I have considered the arguments of the learned counsels for the parties, and have perused the judgments cited before me. Section 331(3) of the U.P.Z.A. and L.R. Act, as amended up-to-date, provides that an appeal shall lie from any decree or from an order passed under section 47, or an order of the nature mentioned in section 104 of the Code of Civil Procedure, 1908, or in Order 43, Rule 1 of the First Schedule to that Code passed by a court mentioned in column No. 4 of Schedule II to this Act in proceedings mentioned in column No. 3 thereof to the court or authority mentioned in column No. 5 thereof. Section 104(1)(i) of the Civil Procedure Code refers to 'any order made under rules from which an appeal is expressly allowed by rules'. Order XLIII, Rule 1(u) of the Civil Procedure Code provides an appeal form an order under Rule 23 of Order XLI remanding a case, where an appeal would lie from the decree of the appellate court. The effect of section 331(3) of the U.P.Z.A. and L.R. Act, read with Section 104 and Order XLIII. Rule 1(u) of the Civil Procedure Code, would be that an appeal would lie from the order remanding the case. The effect of section 331(3) of the U.P.Z.A. and L.R. Act, read with Section 104 and Order XLIII. Rule 1(u) of the Civil Procedure Code, would be that an appeal would lie from the order remanding the case. There is of course no specific forum for F.A.F.O. provided in the U.P.Z.A. and L.R. Act, but provisions of Civil Procedure Code have been made applicable under section 341 of the Act. Under Section 106 of the Civil Procedure Code, it is provided that 'where any appeal from any order is allowed, it shall lie to the court to which an appeal would lie from the decree in the suit in which such order was made'. It follows, therefore, that an appeal would lie to the Board from and appealable order passed by the Commissioner, in terms of Section 106 of the Civil Procedure Code. The principle enunciated by the Hon'ble High Court, in the aforesaid writ petition, is clear, and a F.A.F.O. would lie to the Board from an order refusal to readmit appeal under Order XLI Rule 21, Civil Procedure Code. 8. With these observations, I hold that F.A.F.O. would lie before this court from the order of remand passed by the learned Additional Commissioner in this case which was one under Order XLI, Rule 23 Civil Procedure Code. This view finds support from another decisions of the Hon'ble High Court viz. 1972 A.W. R. 323, as also from the view of Member, Shri Saiyid Hussain, published in R.D. 1 (Supplement). 9. So far as the question of limitation is concerned, it has to be seen on the date of the filing of the revision, because the conversion, if allowed, would relate back to the date of filing of the revision itself. In the instant case, the revision petition was filed well within limitation, and hence there is no question of the F.A.F.O. being time-barred. Court fee paid is sufficient for the purpose of an appeal. 10. In view of the above, I allow the application and permit the conversion of the revision in F.A.F.O. 11. The case be listed for final hearing as F.A.F.O. on November 9, 1977. Counsels have been informed.