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2019 DIGILAW 1048 (ALL)

Jaglal v. Additional Commissioner

2019-04-23

ANJANI KUMAR MISHRA

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JUDGMENT : 1. Heard learned counsel for the petitioners and Shri Diwakar Singh, learned counsel for the Gaon Sabha. 2. By means of the instant writ petition, the petitioners have challenged a preliminary decree in a suit for partition dated 05/07-12-2018 as also the final decree and judgment in the said suit dated 04.01.2019/07.01.2019. 3. The consequential appeal against the aforesaid two judgments and decrees has been dismissed on 05.04.2019 by the Additional Commissioner, Prayagraj Division, Prayagraj, the first Appellate Court, which order is also impugned. 4. It appears that the appeal has been dismissed on the ground that the petitioners are availing an alternative remedy by means of an application for setting-aside the ex pare judgments and decrees. 5. The impugned orders have been assailed on the ground that the petitioner in the writ petition, namely Jaglal, had not filed any restoration application for setting aside either preliminary or the final decree in the suit for partition. The reasoning given for rejecting the appeal, therefore, does not apply to the petitioner. The appeal of the petitioner should, therefore, have been entertained. 6. In my considered opinion, against the order impugned, in case the order is vitiated as submitted by the learned counsel for petitioner, he has a statutory alternative remedy of filing a second appeal before the Board of Revenue. 7. In this regard submission of the learned counsel for the petitioner is that where the order impugned is ex parte, a statutory alternative remedy is not a bar. In this regard reliance has been placed upon the following cases :- (a) Smt. Vijaya Jain vs. State of U.P. through its Principal Secretary (Stamp & Revenue), Government of U.P., Lucknow & Others reported in 2015 (129) RD 703 . (b) Har Devi Asnani vs. State of Rajasthan & Others reported in (2011) 14 SCC, 160. (c) Star Paper Mills Ltd. vs. State of U.P. & Others reported in 2006 (101) RD 568 . (d) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Others reported in (1998) 8 SCC 01. 8. There is no quarrel as regard the settled legal position that an alternative remedy is not bar, specially in cases where the order impugned has been passed in violation of principles of natural justice. 9. (d) Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai & Others reported in (1998) 8 SCC 01. 8. There is no quarrel as regard the settled legal position that an alternative remedy is not bar, specially in cases where the order impugned has been passed in violation of principles of natural justice. 9. Despite the settled legal position aforesaid, no interference is called for because the appeal of the petitioner was one of the remedies available to him. It was also open for him to have filed a recall application for setting aside the ex parte judgment and decree. He however, chose the statutory alternative remedy of filing an appeal which was clearly maintainable. 10. However, against the order passed by the first Appellate Court, a second appeal is provided, which alternative remedy has not been availed by the petitioner. 11. Once either of two available remedies is availed by a litigant, that remedy has to be followed by him, till its final conclusion. It is not open for a party to avail one of two remedies and then assail the order passed on grounds available in the other optional remedy. 12. The petitioner having challenged an ex parte decree by means of an appeal, the remedy available against the appellate order is by means of a Second Appeal under Section 208 of the Revenue Code. Therefore, the writ petition is liable to be dismissed on the ground of availability of a statutory alternative remedy which has not been availed by the petitioner. 13. The writ petition is, accordingly, dismissed on the ground of availability of a statutory alternative remedy of a Second Appeal under Section 208 of the U.P. Revenue Code, 2006.