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1979 DIGILAW 1176 (ALL)

Sahdeo v. Mahadeo

1979-11-02

SAIDULLAH

body1979
JUDGMENT Saidullah, Member. - This is a revision against the Judgment and decree passed by the Additional Commissioner, Varanasi, 31-12-1976 whereby he dismissed the appeal against the judgment and decree of the Assistant Collector First Class, dated 23-8-1976 in a suit under Section 229-B of the U.P.Z.A. & L.R. Act. 2. I have heard the learned counsels for the parties and have gone through the record of the trial court. Briefly stated, the facts of the case are that Mahadeo brought a suit under section 229 B of the U.P. Z.A. & L.R. Act seeking declaration of co-Bhumidhari right with defendants first set and claimed that defendants second set had no concern with the said land, the suit was decreed exparte by Assistant Collector First Class, on 20-5-1975. Thereafter, an application for setting aside the exparte decree was moved before the trial court which was rejected on 23-8-1976. In this orders, the trial court held that the service of summons on the applicant Sahadeo was sufficient. This finding was given after the evidence had been recorded on behalf of both the parties. The lower appellant court also affirmed the finding of the trial court and held that the appellant Sahdeo had failed to show sufficient cause and had not explained satisfactorily the reason for his absence in the original suit and that the trial court has correctly recorded the finding that service of summons on him was proper had adequate. 3. An application has been moved before me that the signature and thumb impression on summons which formed the basis of the finding of the trial court that service had been effectively done was forged and it was necessary that the signatures and thumb impressions should be compared through a document expert which will show that the service of summons on them had not been property carried out and the ex-parte order deserved to be set aside. 4. I have given my careful though to the prayer of the revisionist that the services of document ex-parte should be requisitioned at his cost. But I am inclined to believed that this will amount to introducing new evidence at the stage of second appeal which is bound to prolong the litigation between the parties. 4. I have given my careful though to the prayer of the revisionist that the services of document ex-parte should be requisitioned at his cost. But I am inclined to believed that this will amount to introducing new evidence at the stage of second appeal which is bound to prolong the litigation between the parties. Moreover, this will amount to adducing fresh evidence on question of fact on which findings have already been recorded by the trial court as well as the lower appellate Court. The explanation given by the revisionist that it was on account of lack of legal advice that no application could be given earlier for sending the documents to the ex-part, does not appear to be convincing because at every stage the revisionist was represented by counsels. Moreover, it is a vague suggestion because it does not clearly identify as to who was responsible for such a mistake or omission, and such an explanation by itself does not entitled the revisionist to adduce fresh evidence at this stage. Various ruling have bee cited and I have looked up the law on this point. Guidelines are available in 1970 U.J. (S.C.) 874 wherein interference with question of fact could not permissible only in extreme and fare instance. Similarly in 1969 I.S.C.W.R. 566 U.J. (S.C.) 181 it was held that where there are concurrent findings of fact it could be revised only if these findings are based on mis-reading of documentary evidence. Such is not the case in the present revision as the trial court and the lower appellate court have correctly appraised the evidence that was on record and their evaluation does not suffer from any irregularity. It has also been held in 1965. A.I.R. S.C. 170 that the court is bound by the finding of fact given by the lower appellate court and that a finding of fact is not to be interfered with in second appeal. In fact, there are various rulings laying down that in second appeal the court should not into the question of fact however erroneous the finding of fact recorded by the court of fact may be. In fact, there are various rulings laying down that in second appeal the court should not into the question of fact however erroneous the finding of fact recorded by the court of fact may be. In 1959 A.I.R. (S.C.) 57 and 1950 A.I.R. (Andhra Pradesh) L.T.-page 134, it has been held that the court of second appeal has no jurisdiction of interfere with the findings of fact given by the first appellate court based upon on appreciation of the relevant evidence on record. Interference in second appal, therefore with the findings of fact recorded by the two lower court should not be done so long as there is evidence on record to support the finding recorded by the courts below. The application for obtaining the opinion of a document export is, therefore rejected. 5. I do not find that there has been any misreading of evidence or that the courts below have noted with material irregularity in the exercise of their jurisdiction and as such I dismiss this revision.