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2015 DIGILAW 428 (ALL)

Kripa Krishan v. Board of Revenue Alld.

2015-03-09

ANJANI KUMAR MISHRA

body2015
JUDGMENT Anjani Kumar Mishra, J. Heard learned counsel for the petitioner who submits that the petitioner filed a suit for declaration against his brother, claiming adverse possession over the land in suit. The petitioner and his brother, the respondent are co-owners of this land in suit. 2. This suit for declaration was decreed in favour of the petitioner. Against this judgment and decree, a time barred restoration application, belated by about eleven years was filed by the respondent. During the pendency of the restoration application the respondent also filed a revision before the Commissioner, challenging the exparte judgment and decree. 3. Subsequently, an application was filed for withdrawing the revision on the ground that the revisionist wanted to pursue his restoration application filed before the Trial Court. 4. The Commissioner rejected this application on the ground that the revision had remained pending for about one and a half years resulting in wastage of courts time and that withdrawal was sought only to delay the decision of the proceedings. 5. Aggrieved by this order the contesting respondent preferred a revision before the Board of Revenue which has been allowed by the impugned order, the order of the Additional Commissioner has been set aside and it has been directed that the respondent may pursue his restoration application filed and pending before the Trial Court. 6. The only contention of learned counsel for the petitioner in this regard is that the restoration application was filed after a delay of almost eleven years. Further, for a period of one and a half years the contesting respondents prosecuted the revision and thereby wasted time of the court and therefore the order of the Board of Revenue is liable to be set aside. 7. Upon hearing learned counsel for the petitioner and upon a perusal of the record it emerges that the revision filed by the contesting respondents against the exparte judgment and decree has been permitted to be withdrawn enabling the respondent to pursue his restoration application pending before the Trial Court. 8. I see no illegality in the order passed by the Board of Revenue. The so called recall application filed by the contesting respondents before the Trial Court is for all practical purposes an application under Order IX Rule 13 CPC. The Explanation II to Order IX Rule 13 (High Court Amendment) is extremely relevant for the purposes of the instant writ petition. The so called recall application filed by the contesting respondents before the Trial Court is for all practical purposes an application under Order IX Rule 13 CPC. The Explanation II to Order IX Rule 13 (High Court Amendment) is extremely relevant for the purposes of the instant writ petition. The Explanation II as applicable in U.P. is extracted below: - "Where there has been an appeal against a decree passed exparte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside that ex parte decree." 9. Perusal of the Explanation reveals that an application under Order IX Rule 13 can be entertained only if an appeal filed against an exparte judgment and decree is withdrawn. In case an appeal is preferred and the same is not withdrawn and is in fact decided on its merits, the application under Order IX Rule 13 will not lie. Under the CPC a judgment and decree can be challenged by means of an appeal. However, Section 331 of the U.P. Zamindari Abolition & Land Reforms Act also provides for a revision against an appealable order, in case, no appeal has been filed. Taking benefit of this provision the contesting respondent appears to have preferred a revision rather than an appeal. It is this revision which was sought to be withdrawn so as to enable the respondents to pursue his restoration application, which as already observed herein above, is for all practical purposes an application under Order IX Rule 13. 10. Since two remedies are available against an exparte judgment and decree one by means of an application under Order IX Rule 13 for recall of the same and the other by means of an appeal challenging the judgment and decree on its merits and the party has an option to chose either of the two remedies and in the instant case the contesting respondent has opted to prosecute his application under Order IX Rule 13 and therefore sought to withdraw his revision, which has been permitted by the Board of Revenue, I find no illegality in the impugned order. 11. The writ petition is therefore, devoid of merits and is accordingly dismissed.