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2017 DIGILAW 2585 (ALL)

Shyam Bihari v. State of U. P.

2017-11-08

MANOJ MISRA

body2017
JUDGMENT : 1. Heard learned counsel for the petitioners and the learned Standing Counsel representing the respondent nos. 1 to 4; and have perused the record. 2. The case has been taken up in the revised list. The name of Sri R. C. Upadhyay is shown as counsel for the respondent no.5 (Gaon Sabha) but he is not present. 3. Considering that parties have exchanged their affidavits, this petition is being decided finally with the consent of the learned Standing Counsel who represents the respondents 1 to 4. 4. The petitioners had instituted Suit No. 60 of 2012 in the Court of Up Zila Adhikari/Sub-Divisional Magistrate, Bairiya, Ballia, under Section 229-B of the U.P.Z.A. & L.R. Act, for declaration of bhumidhari rights over plot no. 230, area 0.37 acre at Mauja Baijnathpur, Pargana Dwaba, District Ballia. 5. It is the case of the petitioners that in the said suit, an application, under Section 229 D of the U.P.Z.A.& L.R. Act, for seeking temporary injunction was pending and for decision on the said application, Writ C No. 62926 of 2013 was filed which was disposed of by order dated 19.11.2013 requiring the Sub-Divisional Officer to address the said application. 6. According to the petitioners when decision was not taken on the application pursuant to the direction given by this Court in Writ C No. 62926 of 2013, Contempt Application (Civil) No. 749 of 2014 was filed, which was disposed of by order dated 03.02.2014 requiring compliance of the direction given by the Writ Court within a stipulated period. 7. It has been submitted that by treating the aforesaid direction, as a direction to decide the suit itself, without following the due procedure prescribed by the Code of Civil Procedure, as is applicable by virtue of section 341 of the U.P.Z.A.&L.R. Act, the Sub-Divisional Officer, Bairiya, Ballia, called for a report from the Tehsildar and on the basis of the said report, by observing that the plaintiff had not adduced evidence, dismissed the suit summarily, vide order dated 14.02.2014. Aggrieved by the order, the petitioners filed an appeal which was dismissed summarily by order dated 03.09.2014 passed by the Additional Commissioner (Administration), Azamgarh Division, Azamgarh and, thereafter, second appeal preferred by the petitioners was also summarily dismissed vide order dated 07.11.2014 passed by the Board of Revenue. 8. Aggrieved by the order, the petitioners filed an appeal which was dismissed summarily by order dated 03.09.2014 passed by the Additional Commissioner (Administration), Azamgarh Division, Azamgarh and, thereafter, second appeal preferred by the petitioners was also summarily dismissed vide order dated 07.11.2014 passed by the Board of Revenue. 8. The petitioners have assailed the orders passed by the trial court, the lower appellate court; and the second appellate court, dated 14.02.2014; 03.09.2014; and 07.11.2014, respectively, on the ground that the courts below have failed to adhere to the procedure provided by the Code of Civil Procedure for deciding a civil suit which is applicable to a Revenue Court by virtue of section 341 of the U.P.Z.A.&L.R. Act. It has been submitted that the trial court did not even examine whether a written statement was filed or not and instead of proceeding, as per the provisions of the Code of Civil Procedure, the trial court straight away obtained a report from the Tehsildar and, on the basis of the said report, the suit was dismissed by making various observations. It has been submitted that the trial court ought to have first examined whether notice/summons had been duly served on the defendants or not and, if the notice/summons had been served on the defendants, whether they had filed written statement or not. If they had filed written statement denying the plaint case, then issues ought to have been framed. And if, no written statement had been filed then a date ought to have been fixed to proceed ex parte and, thereafter opportunity to the plaintiff to lead evidence ought to have been given. But, instead of following such procedure, the trial court straightaway called for a report from the Tehsildar and, by acting on the said report, dismissed the suit, which is completely contrary to the procedure prescribed by the Code of Civil Procedure and, therefore, the order passed by the trial court is liable to be set aside; and since the lower appellate court as well as second appellate court did not correct the procedure adopted by the trial court, their orders also deserve to be set aside and the proceeding ought to be restored to its original number in the trial court to enable the trial court to decide, afresh, in accordance with law and in accordance with the procedure prescribed by the Code of Civil Procedure. 9. 9. Learned Standing Counsel, who represents the respondents 1 to 4, has tried to support the order passed by the courts below on merits but he has failed to demonstrate that in the proceedings of the suit, a written statement had been filed and the procedure prescribed by the Code of Civil Procedure had been followed. 10. From the grounds of appeal presented by the plaintiff-petitioners before the lower appellate court, it appears that vide ground no.9, a specific plea was taken that the procedure prescribed by the Code of Civil Procedure was not followed. In ground no. 10, the appellant had taken a plea that on account of not following the due procedure prescribed by the Code of Civil Procedure, the entire proceeding stood vitiated. 11. I have carefully examined the orders passed by the trial court; the lower appellate court; and the second appellate court. 12. This court finds that there is no discussion whether pursuant to service of summons the defendants had filed written statement or not and whether they had accepted the claim of the plaintiff or not. There is nothing on record to show that under what circumstances a report was called from the Tehsildar and whether the said report was confirmed in accordance with law. The orders passed by the courts below do not reflect that even issues were framed by the courts below. 13. In fact, it appears, a summary procedure, which ordinarily is followed while dealing with mutation proceeding, was adopted by the trial court and straightaway some report was obtained and by relying on the report, the case was dismissed on merits. 14. Such procedure adopted by the trial court is in fragrant violation of the procedure prescribed by the Code of Civil Procedure which is applicable to a revenue court by virtue of section 341 of the U.P.Z.A.& L.R. Act while dealing with a suit. 15. A perusal of the orders passed by the lower appellate court as well as the second appellate court would reveal that the second appellate court as well as the lower appellate court had not bothered to consider whether the procedure prescribed by the Code of Civil Procedure was duly followed while deciding the suit or not. The courts below seem to have been swayed by the report of the Tehsildar. 16. The courts below seem to have been swayed by the report of the Tehsildar. 16. A report could be a piece of evidence, when accepted in accordance with the procedure prescribed. No doubt, trial court has power to dismiss a suit on merits even when it proceeds ex parte against the defendant. But to reach that stage, steps have to be taken in accordance with the procedure prescribed by the Code of Civil Procedure, which is applicable on revenue courts dealing with suits under the U.P.Z.A. & L.R. Act, by virtue of section 341 of the Act. 17. As there had been complete disregard to the procedure prescribed by the Code of Civil Procedure for dealing with suits, the trial stood vitiated and therefore the order of the trial court as well as of the appellate and second appellate court are liable to be set aside. The writ petition is allowed. The orders dated 14.02.2014; 03.09.2014; and 07.11.2014 in Suit No. 60 of 2012; Appeal No. 117/B of 2014; and Second Appeal No. 15/2013-14 respectively, are set aside. A direction is issued upon the fourth respondent (Sub-Divisional Officer, Bairiya, Ballia) to restore Suit No. 60 of 2012 to its original number and to proceed in the suit in accordance with law. 18. It is made clear that this Court has not expressed any opinion as regards the merits of the claim of the parties.