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1982 DIGILAW 465 (ALL)

Munawar Ali v. Waris Ali

1982-03-30

R.S.SINGH

body1982
ORDER R.S. Singh, J. - This writ petition is directed against the order of the Board of Revenue dated 6-10-1975 allowing the revision filed by the contesting respondents. 2. The facts of the case in brief are that a suit under S. 229-B, U. P. Zamindari Abolition and Land Reforms Act, was filed by the petitioner against the contesting respondents for the declaration that he is the tenure holder of the land in dispute and a prayer for possession in the alternative was also made in case he was found to be out of possession. The suit was contested by respondents 1 to 3 on the ground that the defendants are the tenure-holders and not the plaintiff and bar of S. 34(5), U. P. Land Revenue Act, (hereinafter referred to as Act) was also pleaded. 3. The suit was dismissed by the trial court on the finding that the plaintiff is not the tenure-holder and also that the suit is barred by S. 34(5) of the Act. The petitioner preferred an appeal against the decree and judgment of the trial court. An application was moved on behalf of the petitioner that in view of the finding of the trial court that the suit is barred by S. 34(5) of the Act, the suit is liable to fail and it being a formal defect, the plaintiff may be allowed to withdraw his suit with permission to file a fresh suit. This application for withdrawal was opposed by the defendants-respondents on the allegation that a decree has been passed in their favour, therefore, the plaintiff should not be allowed to withdraw the suit. The Addl. Commissioner allowed the application for withdrawal of the suit with permission to file a fresh suit. The respondents preferred a revision against the order of the Addl. Commissioner, which was allowed and the permission to withdraw the suit with liberty to file fresh suit was refused. The petitioner has challenged the order of the Board of Revenue before this Court in the present writ petition. 4. It has been contended by the learned counsel for the petitioner that the Addl. Commissioner considered the bar of S. 34(5) of the Act as a formal defect and the suit was rightly allowed to be withdrawn with permission to file a fresh suit. 4. It has been contended by the learned counsel for the petitioner that the Addl. Commissioner considered the bar of S. 34(5) of the Act as a formal defect and the suit was rightly allowed to be withdrawn with permission to file a fresh suit. The Board of Revenue has committed an error in exercising its revisional jurisdiction in setting aside the order of the Addl. Commissioner. He placed reliance on Suraj Pal Singh v. Sri Gharam Singh ( AIR 1973 All 466 ) and distinguished Kanhaiya v. Mst. Dhaneshwari (1972 All L J 575) : ( AIR 1973 All 212 ) which was relied on by the Board of Revenue in giving judgment against the petitioner. 5. The learned counsel for the respondents contended that the judgment of the trial court was on merit and not on the basis of formal defect only. It was held by the trial court that the defendants are the tenure-holders of the land in dispute and also that the suit was barred by S. 34(5) of the Act. He placed reliance on 1972 All L J 575 : ( AIR 1973 All 212 ) (supra) and according to him, it fully applies to the facts of the present case. He also placed reliance on Vidyadhar Dubey v. Har Charan ( AIR 1971 All 41 ) in support of his contention. 6. From the perusal of AIR 1973 All 466 (supra) it is quite clear that in this case both the cases relied upon by the learned counsel for the respondents have been noticed and relying on the division bench of this Court reported in Mst. Afjal Begum v. Mst. Akhari Khanam ( AIR 1915 All 123 ) it was held that a plaintiff can always withdraw his suit even at the appellate stage and the appellate court has power to allow for withdrawal of the suit under O. 23, R. 1, Civil P. C. even where the suit has been dismissed by the trial court. I respectfully agree with the view taken by the learned judge in this case. 7. I respectfully agree with the view taken by the learned judge in this case. 7. It was next contended by the learned counsel for the petitioner that there was formal defect in the suit and the appellate court has rightly allowed to withdraw the suit with permission to bring a fresh suit and the Board of Revenue has committed an error in exercising its jurisdiction in revision in setting aside the order of the appellate court. The learned counsel for the respondents, in reply, contended that there was no formal defect in the case, but the defect was a fatal one. The learned counsel for the respondents placed reliance oh Thakur Prasad v. Rasool Bux (AIR 1950 All 489) and some other decisions of some other High Courts. He further contended that the Board of Revenue has rightly interfered in the order of the appellate court and has committed no error in exercising its revisional jurisdiction. He also placed reliance on Abdul Ghafoor v, Abdul Rahman ( AIR 1951 All 845 ) (FB) and some other cases of other High Courts. 8. The question whether the order of the appellate court allowing the withdrawal of the suit with permission to file a fresh suit rests on the question that the defect of bar of S. 34(5) is a formal defect of the suit or is a fatal defect, the learned counsel for the petitioner contended that the appellate court was of the view that even if the findings recorded by the trial court against the plaintiff on merit is liable to be reversed by this court even then the suit is liable to fail on account of bar of S. 34(5) of the Act. In this view of the case, he considered it to be a fit case to allow the withdrawal of the suit and to bring a fresh suit. The case in AIR 1951 All 845 (FB) (supra) relied upon by the learned counsel for the respondents has been considered in Sheo Kumar Dwivedi v. Thakurji Maharaj Brijman ( AIR 1959 All 463 ). The case in AIR 1951 All 845 (FB) (supra) relied upon by the learned counsel for the respondents has been considered in Sheo Kumar Dwivedi v. Thakurji Maharaj Brijman ( AIR 1959 All 463 ). In this case, a division bench of this Court in a case arising out of O. 23, R. 1, Civil P. C. has held that : - "All that could be said was that possibly the court below committed an error in regard to its view of what was "formal defect" within the meaning of Rule 1 of Order 23 or that the court below committed an error in regard to what could be deemed "sufficient grounds" within the meaning of R. l(2)(b) of Order 23 of the CPC. The error, therefore, which the court below may have committed was in our opinion, at best, an error of law and not an error that in any manner affected the jurisdiction of that court to make or refuse to make an order which that court could under the provisions of O. 23." In this view of the matter it cannot be held that the appellate court has committed error of jurisdiction but at best, it could be an error of law and it was not an error that in any manner affected the jurisdiction of that court in allowing the application for withdrawal and to file fresh suit. 9. In view of what has been discussed above, the order of the Board of Revenue cannot be sustained in law and it deserves to be quashed. 10. In the result, the petition succeeds and is allowed. The order dated 6-10-1975 of the Board of Revenue is quashed and the parties are directed to bear their own costs.