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2023 DIGILAW 1668 (ALL)

Sitaram v. State of U. P.

2023-07-12

CHANDRA KUMAR RAI

body2023
JUDGMENT Chandra Kumar Rai, J. Heard Sri Sharad Kumar Pandey, learned counsel for the petitioners, Sri Madhusudan Dikshit, learned counsel for respondent nos. 3/1 and 3/2 and Sri A.B. Srivastava, learned standing counsel for the state respondent. 2. Brief facts of the case are that petitioners filed a Suit No.26/1996 on 16.3.1996, under Section 229-B of the U.P. Z.A. & L.R. act for declaration in respect to plot no.601, area 0.241 decimal situated in village Pathanpura, Pergana and District Saharanpur. The aforementioned suit was dismissed vide judgment and decree dated 15.6.1999. Against the judgment and decree dated 15.6.1999 passed by the trial court, petitioners filed an Appeal No.117 of 1998-99 before the Commissioner, under Section 331 of the U.P.Z.A. & L.R. Act which was dismissed for non-prosecution on 30.5.2000. Against the order dated 30.5.2000, petitioners filed an application for recall and delay condonation on 4.7.2014. Petitioners filed a substitution application on 20.8.2014 in respect to deceased opposite parties in appeal. On 20.8.2014, Additional Commissioner allowed the substitution application dated 20.8.2014. Additional Commissioner vide an order dated 31.10.2014 allowed the recall application as well as delay condonation application on cost of Rs.250/-. One Shailesh Mishra has filed Writ C No. 66869/2014 before this Court against the order dated 31.10.2014 which was dismissed for non-prosecution vide order dated 8.1.2020. On 21.11.2014, father of respondent no.3/1 filed a recall application against the order dated 21.11.2014 which was allowed by Additional Commissioner vide order dated 15.12.2022, setting aside the order dated 31.10.2014 and restored the restoration matter for fresh decision. Hence, this writ petition against the order dated 15.12.2022, passed by respondent no.2/Additional Commissioner, Saharanpur Division, Saharanpur. 3. Counsel for the petitioners submitted that against the dismissal of the appeal for non-prosecution filed by the petitioners, restoration application and delay condonation application was allowed by the Additional Commissioner. It is further submitted that substitution application which was filed along with restoration matter, was allowed after notice to the proposed heirs. It is also submitted that order, allowing restoration application, was challenged by one Shailesh Mishra before this Court, by way of a writ petition, which was dismissed and the order, restoring the case, was maintained. It is further submitted that substitution application which was filed along with restoration matter, was allowed after notice to the proposed heirs. It is also submitted that order, allowing restoration application, was challenged by one Shailesh Mishra before this Court, by way of a writ petition, which was dismissed and the order, restoring the case, was maintained. It is also submitted that the application filed by the contesting respondent for restoring the case to its original number, has been allowed on the ground that no notice was issued to the heirs of deceased-party, as such, the restoration and delay condonation matter should be heard afresh. He further submitted that the impugned order is wholly illegal as by the earlier order only the appeal has been restored to its original number. It is further submitted that the impugned order be set aside and necessary direction be issued for disposal of the petitioners' appeal in accordance with law. 4. On the other hand, Mr. Madhusudan Dikshit appearing for the contesting respondent submitted that appeal was restored without notice to the contesting respondents. It is further submitted that substitution application was filed along with restoration matter and on the same day, the substitution was allowed which demonstrates that notice was not issued to the proposed heirs. It is further submitted that dismissal of the writ petition at the instance of another party, will not bind the contesting respondent to challenge the order, restoring the appeal to its original number. It is also submitted that vide impugned order, only the order restoring the appeal has been set aside and direction has been issued to consider the restoration matter afresh, as such, petitioner has opportunity to contest the restoration proceeding before the Additional Commissioner. 5. I have considered the arguments advanced by learned counsel for the parties and perused the records. 6. There is no dispute about the fact that suit under Section 229-B of the U.P. Z.A. & L.R. Act filed by the petitioner, was dismissed on merit. There is also no dispute about the fact that the appeal filed by the petitioner was dismissed for non-prosecution in the year 2000 and the restoration application filed after about 14 years, has been allowed, restoring the appeal to its original number. There is also no dispute about the fact that the appeal filed by the petitioner was dismissed for non-prosecution in the year 2000 and the restoration application filed after about 14 years, has been allowed, restoring the appeal to its original number. There is further no dispute about the fact that vide impugned order the application filed by the contesting respondent, has been allowed and the order restoring the case, has been set aside, resulting into hearing of restoration matter afresh. 7. Vide impugned order dated 15.12.2022, the finding has been recorded that without service of notice upon the proposed heirs, the order dated 31.10.2014 has been passed, restoring the appeal to its original number which is denial of opportunity of hearing to the contesting opposite parties. 8. In view of the finding recorded by the Additional Commissioner to the effect that there was no service of notice upon the proposed heirs before allowing the time barred restoration application and restoring the appeal to its original number coupled with the fact that there is no document on record which demonstrates that notices were issued to the proposed heirs and service was found sufficient upon the proposed heirs. 9. In view of the aforementioned fact, no interference is required against the impugned order. 10. The writ petition is dismissed. 11. However, the Additional Commissioner shall decide the restoration matter afresh in accordance with law, expeditiously.