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1984 DIGILAW 714 (ALL)

Janki Kunwari v. Musharraf Ali

1984-09-12

KAUSHAL KISHORE

body1984
JUDGMENT Kaushal Kishore, Member. - In this reference dated 26-8-1982, the learned Additional Commissioner, Faizabad Division, Faizabad, has recommended that the order by the learned trial court dated 5-2-1981 by which earlier order dated 23-11-1979 to proceed ex parte against Goan Sabha in the case under Section 229-B of the UPZA & LR Act and to dismiss the other case by the Gaon Sabha under Section 168-A of the Act, was set aside and both the cases were fixed for hearing on 8-2-1981, may be set aside. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The learned trial court had two cases before it, one by Smt. Janki Kunwar under Section 229-B of the Act for a declaration that she was the co-tenure-bolder with Musharraf Ali on the basis of sale-deed executed by the latter in her favour for western half of the plot number 169 and another case under Section 168-A of the Act by the Gaon Sabha in respect of the same land number 169 (min) area 1.273 acres. These were consolidated and on 23-11-1979 none appearing on behalf of the Gaon Sabha an order dismissing the case under Section 168-A and for proceeding ex parte in the other case under Section 229-B of the Act was passed. On 28-6-1980, the Gaon Sabha applied for setting aside the order of 23-11-1979 which application was rejected by the learned trial court by the order dated 15-9-1980 on the ground that the counsel for the Gaon Sabha knowingly defaulted and there was no justification to restore the case. Again the Gaon Sabha gave another application on 24-9-1980 under Section 151 CPC which was allowed on 5-2-1981 but by a non-speaking order. 4. The learned counsel for the applicant has argued that the application filed on 28-6-1980 was time-barred and that the SDO has no power to review his own order. The learned counsel for the opposite party cited ruling reported in AIR 1975 Alld. 102 (FB) and 1981 ACJ 218 in support of his contention that it was possible even to grant restitution of possession under Section 151 CPC and so in this case the second application dated 24-9-1980 under Section 151 CPC by the Gaon Sabha could be allowed under the inherent powers of the court. 102 (FB) and 1981 ACJ 218 in support of his contention that it was possible even to grant restitution of possession under Section 151 CPC and so in this case the second application dated 24-9-1980 under Section 151 CPC by the Gaon Sabha could be allowed under the inherent powers of the court. It was not an order passed in review by the learned SDO and the rulings support the order. 5. The learned SDO set aside the order of 23-11-1979 under Section 151 CPC which is only right when unwanted injustice was caused by the order dated 15-9-1980. We cannot forget that the Gaon Sabha is an indeterminate juristic person whose constituent members are all the persons residing within the revenue villages making up the Gaon Sabha, having accountability to the future generation also, and quite resembles a country or rather a nation in nature. There is no full powered agent, servant or representative of the Gaon Sabha and the pradhan, Panel lawyers or other lawyer and the lekhpal etc. are merely limited agents, they can execute only those functions which the Land Management Committee of the Gaon Sabha entrusts to them and they can exercise only those powers which are delegated to them by the LMC and these too must be within the limits set by the UPZA & LR Act. Knowledge of anything to Gaon Sabha can be only through knowledge to LMC and for specified purposes only through the Chairman, LMC/Pradhan, Gaon Sabha. With this background, it had to be judged whether the restoration application dated 28-6-1980 had to be allowed. No blame on the counsel of the Gaon Sabha for his deliberate negligence can harm the Gaon Sabha in litigation. In the interest of justice a satisfactory opportunity of hearing to the Gaon Sabha, the indeterminate juristic person, had to be allowed. 6. It has been held by the Hon'ble Supreme Court in the ruling reported in AIR 1981 SC 1400 that no party is to suffer for the inaction, deliberate mission or misdemeanour of his agent. This principle is best applied to the Gaon Sabha which can think and decide the its interest through its whole community and thereby through the elected LMC within the limits set by the UPZA & LR Act. The restoration application of 28-6-1980 could not be rejected if there was at all any consideration for justice. This principle is best applied to the Gaon Sabha which can think and decide the its interest through its whole community and thereby through the elected LMC within the limits set by the UPZA & LR Act. The restoration application of 28-6-1980 could not be rejected if there was at all any consideration for justice. The injustice to the Gaon Sabha by such rejection on 15-9-1980 was set right by the order dated 5-2-1981 by which the order dated 23-11-1979 was set aside. It was only proper that the learned trial court passed the order under Section 151 CPC though without clarifying the background and giving this justification. 7. I would conclude with a few rulings to support no interference in this revision. In the ruling reported in 1948 ALJ 43 it was held that the revisional jurisdiction of the High Court is entirely discretionary, and it is only in the interest of justice that the High Court should interfere. To withdraw justice already done to the Gaon Sabha, lam reluctant to interfere. In the ruling reported in 1976 UPRJ 68, it was held that the power in revision should not be exercised to restore an order which is illegal and unjust. In another ruling reported in 1978 Allahabad Rent Cases 496, it was held that as far as possible the court's discretion should be exercised in favour of hearing and not to shut out hearing. I find no justification to allow the revision, the reference is found not acceptable and the revision petition is accordingly rejected.