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2024 DIGILAW 2336 (ALL)

Udai Raj v. Board Of Revenue

2024-11-12

SAURABH SHYAM SHAMSHERY

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JUDGMENT : Saurabh Shyam Shamshery, J. 1. Heard Sri Brijesh Kumar Pandey, learned counsel for petitioner and Sri R.K. Rathore, learned counsel for respondents. 2. In present case, a suit was filed petitioners under Section 229 of U.P. Zamindari Abolition and Land Reforms Act, which was decreed ex-parte vide order dated 07.07.1972, however, its copy is not on record. 3. The State thereafter filed an application under Order IX Rule 13 CPC on 07.03.1986. The said application was dismissed for want of prosecution vide order dated 13.03.1987. Thereafter, one Baijnath claiming himself to be pairokar of State has filed a restoration application to recall the order dated 13.03.1987 and prayed that application filed by State under Order IX Rule 13 CPC be restored and heard on merit. 4. It appears that State has also filed an application for same relief dated 13.03.1987 itself. On 19.06.1990, restoration application filed by Baijnath got dismissed, however, restoration application filed by State was put for hearing on next date fixed. For reference, order dated 19.06.1990 is quoted below :- 5. Later on, it appears that restoration application so filed by State got missed from file, therefore, on 05.07.1990, State has filed another application with a prayer to search the second restoration application filed by State and same may also be allowed. Contents of application are as follows :- 6. Petitioner herein has filed objections to said application dated 05.07.1990 confronting that no such application was filed by State on 13.03.1987 when application filed by State under Order IX Rule 13 CPC was dismissed in default on same day. 7. In aforesaid circumstances, on 29.08.1990, the trial Court dismissed the application filed by State on 05.07.1990 since on 13.03.1987, a restoration application has already been dismissed and thereafter a restoration application filed by State was also dismissed on 19.06.1990 and since no challenge is made against both orders, therefore, nothing survives to decide. 8. In aforesaid circumstances, State filed an appeal before Appellate Court, however, same was dismissed mainly on ground that it was against an interlocutory order. For reference, relevant part of order dated 27.12.1990 is quoted below :- 9. Learned counsel for petitioner refers a finding in said order that contention of State that application filed on 13.03.1987 was missing from records has no substance. Thereafter, State has preferred a revision petition before Board of Revenue. For reference, relevant part of order dated 27.12.1990 is quoted below :- 9. Learned counsel for petitioner refers a finding in said order that contention of State that application filed on 13.03.1987 was missing from records has no substance. Thereafter, State has preferred a revision petition before Board of Revenue. Said revision petition was allowed to the effect that order dated 13.03.1987, 29.08.1990 and 27.12.1990 were set aside and matter was remitted back to decide the application for restoration filed by State which was dismissed for want of prosecution on 13.03.1987. For reference, relevant part of order is quoted below :- 10. Learned counsel further submits that order dated 13.03.1987 whereby application filed under Order IX Rule 13 CPC was rejected for want of prosecution was never challenged in an appeal, therefore, order of Revisional Court to set aside the said order was beyond its jurisdiction. 11. Learned counsel also submits that submission of State that they have filed an application for restoration application on 13.03.1987 was found to be false. 12. Learned Standing Counsel for State as well as learned counsel for respondents have supported the impugned order that no prejudice has caused to petitioner that only a restoration application is being directed to be heard on merit, therefore, in such circumstances, this Court may not interfere with impugned order. 13. Heard learned counsel for parties and perused the record. 14. In present case, as referred above, a suit was decreed on 07.07.1972 ex-parte against the Gaon Sabha and therefore a restoration application was filed by State under Order IX Rule 13 CPC on 07.03.1986 which was dismissed for want of prosecution on 13.03.1987. On basis of record, it cannot be denied that order dated 13.03.1987 was never challenged by way of filing an appeal by State and order under challenge was passed on a subsequent application filed on 05.07.1990 which was rejected vide order dated 19.08.1990. 15. It appears that State has proceeded with case that they have already filed an application for restoration vide order dated 13.03.1987, however, as per record, said application is not on record. 16. Court has considered that impugned order is of remand and till date there is no adverse order against petitioner since restoration application is directed to be heard again on merit. 17. 16. Court has considered that impugned order is of remand and till date there is no adverse order against petitioner since restoration application is directed to be heard again on merit. 17. This writ petition is pending since 1995 and by order dated 01.12.1995, this Court has directed that impugned order dated 24.07.1995 shall remain suspended and it appears that said order is still in currency. 18. The Board of Revenue has proceeded with matter not on merit but has exercised its purportedly discretionary powers and matter was directed to be remitted back to decide the application of restoration afresh, however, Board of Revenue does not possess any discretionary power. 19. The Board of Revenue has failed to consider that order dated 13.03.1987 whereby admittedly application filed by State under Order IX Rule 13 CPC was dismissed for want of prosecution and that admittedly it was never challenged. Challenge was only to an order passed on restoration application filed by other person and an order passed on second application of State, which itself was not maintainable, therefore, to set aside the order dated 13.03.1987 without its challenge appears to be an illegal approach on face of it. 20. Court also takes note that State has never challenged the decree on merit i.e. by way of filing a first appeal. Court also takes note that this writ petition is of the year 1995 and is pending for last 3 decades and there is an interim order in operation in favour of petitioners, therefore, at this stage, since impugned order amounts to cause prejudice to petitioner and considering that order dated 13.03.1987 was never challenged at the behest of State, therefore, impugned order which has set aside the said order cannot survive, accordingly, impugned order is set aside. 21. The submission to remand the matter is also considered, however, since petitioners are enjoying interim order for last 3 decades and suit was decreed in the year 1972 i.e. about 5 decades ago, therefore, said submission of State stands rejected. 22. Accordingly, writ petition is allowed.