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1992 DIGILAW 1133 (ALL)

Saral v. Ali Husain

1992-08-27

BHAIRO PRASAD

body1992
JUDGMENT Bhairo Prasad, Member. - Heard the learned counsel for the revisionist on admission. 2. In brief the facts of this case are that an ex-parte decree was set aside by the trial court and the suit was restored, since the village was under consolidation operation, hence the trial cour abated the suit under Section 5 of U.P.C.H. Act. The revisionist instead of moving the trial court preferred to file the revision on the ground that he was not served with the notice and he was also not heard on passing the order of abatement. The Additional Commissioner has dismissed the revision, hence he has filed this revision under Section 333 of U.P. Act No. 1 of 1951. 3. As regards the summon the service this point should have been adjudicated before the trial court. The trial court has recorded the finding that the summons are served on the revisionist. The revisionist court cannot enter into the finding of fact and believed the pleading of the revisionist that he was not served with the notice. However, the question of abatement can be considered but, this is purely legal question. This can be considered either in the trial court or before the Additional Commissioner or in this court. It will be difficult for the revisionist to get any remedy or relief because when the village is under consolidation operation the pending suit or even revision ought to be abated. Mere giving opportunity of hearing will not suffice. Practically the revisionist is aggrieved against the restoration of the suit if he was not present in that court he should move that court first so that it could be seen whether the restoration order was passed after service or not. 4. In these circumstances of the case I do not want to express any other opinion in this case except to direct the revisionist to move the trial court if he was not present in the trial curt when the ex-parte decree was set aside, then he will get the opportunity again to move this court. In my opinion otherwise if any injustice is done to the revisionist it will not be possible to redress from this court.