JUDGMENT Bhairo Prasad, Member. - This reference has been made by the Additional Commissioner. Gorakhpur Division, Gorakhpur vide his recommendation dated 18-11-1989 under Section 333-A of U.P. Act No. 1 of 1951. 2. In brief the facts of this case are that a suit was pending between the parties in the trial court. The suit was abated on 9-12-1975 under Section 5 (2) of U.P.C.H. Act. Amanatullah filed an application on 5-6-1985 that there has been no consolidation operation in the village as the land is situated in urban area. This application was opposed but subsequently in the default of Amanatullah and others it was dismissed in default on 13-4-1987, again the restoration application was filed on that very date. The trial court has set aside that restoration application vide its order dated 3-8-1987. Against that order of the Sub-Divisional Officer revision was filed before the Additional Commissioner who has recommended to accept the revision and that the order of the trail court should be set aside and he should be directed to consider the question of fact whether the suit has been abated or not under Section 5 (2) of U.P.C.H. Act. 3. I have heard the learned counsel for both the parties. Perused the record 4. The main question in this reference is whether the suit has been rightly abated or not. Any application given by the party should have been considered by the trail court on merits. He should have not dismissed that application in default. If the suit had abated under Section 5 (2) of U.P.C.H. Act he should have conform that state of fairs. If he suit has not been abated under Section 5 (2) of U.P.C.H. Act then some fraudulent act was practised upon the court when the court abated the proceeding under Section 5 (2) of U.P.C.H. Act. 5. In these circumstances, the order passed by the trial court is materially defective and illegal, therefore that order is set aside and the trial court is directed to decide this issue whether the suit under Section notice to the parties.