Allahabad High Court
Hariram And Another vs State Of U.P. And 4 Others on 2 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:18988
Court No. - 5
Case :- WRIT - C No. - 45196 of 2023
Petitioner :- Hariram And Another
Respondent :- State Of U.P. And 4 Others
Counsel for Petitioner :- Lavkush Kumar Bhatt,Byas Kumar Prasad
Counsel for Respondent :- C.S.C.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Byas Kumar Prasad, the learned counsel for petitioners and the learned Standing Counsel for Respondents 1, 2, 3 and 4.
2. Perused the record.
3. Challenge in this writ petition is to the order dated 27.10.2023 passed by Respondent 2, Additional Commissioner, Kanpur Division, Kanpur in Revision No. 1725 of 2021 (Sonu Singh Vs. Ramphal and Others), under Section 210 of U.P. Revenue Code, 2006 (Annexure-1 to the writ petition) whereby aforementioned revision was allowed, the order dated 12.03.2021 passed by Respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj in Case No. 4224 of 2016 (Radhey Shyam Vs. Ramphal and Others), under Section 34 of U.P. Revenue Code, 2006 (Annexure-6 to the writ petition) was set aside and the matter has been remanded to Respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj for decision afresh.
4. At the very outset, the learned Standing Counsel has raised a preliminary objection regarding maintainability of present writ petition. He submits that order impugned in present writ petition is an order of remand. As such, no final adjudication of the right, title and interest of the parties has been made. Learned Standing Counsel has then referred to the provisions contained in Order 43 Rule 1(u) CPC and on basis thereof, he submits that an order of remand can be challenged only on limited grounds i.e. the order of remand is vague or the matter has been remanded to fill in the lacuna in evidence. However, in the present case, the matter has been remanded on the finding that no opportunity was afforded to the revisionist Sonu Singh by Respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj before passing the order dated 12.03.2021. He also contends that a judgment after hearing the parties is far far better than a judgment ex-parte. By virtue of the order of remand impugned in present writ petition, respondent 5 will also get an opportunity to plead his case before Respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj. In view of the equitable nature of the order of remand, no interference is warranted by this Court in exercise of equitable jurisdiction under Article 226 of the Constitution of India. Furthermore, petitioner has statutory alternative remedy by way of an appeal in terms of Section 210 of U.P. Revenue Code, 2006. To buttress his submission, he has relied upon the judgment of this Court passed in WRIT-C No. 10192 of 2023 (Paltoo Ram Yadav Vs. State of U.P. and 6 Others) decided on 18.08.2023. It is thus urged that since petitioner has an adequate, effective and efficacious alternative remedy, therefore, present writ petition is misconceived and liable to be dismissed on the ground of alternative remedy.
5. When confronted with above, the learned counsel for petitioner has invited the attention of Court to Section 107 of U.P. Revenue Code, 2006. With reference to above, he submits that appellate court can pass an order of remand. He, however, submits that the order of remand passed by appellate court is vague inasmuch as, respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj vide order dated 05.03.2020 directed to proceed ex-parte against respondent 5 on account of his absence. However, in spite of above order, respondent 5 did not appear before Tehsildar. The matter was ultimately decided vide order dated 12.03.2021 passed by respondent 3. He has then referred to the judgment of the Supreme Court in Arvind Kumar Jaiswal Vs. Devendra Prasad Jaiswal Varun, 2023 Live Law (SC) 112 and of this Court in WRIT-B No. 18431 of 2003 (Sita Ram Vs. The Board of Revenue and Others) decided on 05.07.2010 in support of his submission that in the facts and circumstances of the case, the order of remand is unsustainable. However, he could not dislodge the objections raised by the learned standing counsel that the order of remand is not only just and equitable and therefore, not liable to be interfered with, and for redressal of the grievances raised in present writ petition, remedy lies to the petitioner by way of a revision, and therefore, present writ petition is liable to be dismissed on the ground of alternative remedy.
6. Having heard, the learned counsel for petitioner, the learned Standing Counsel and upon perusal of record this Court finds that by means of the impugned order, the matter has been remanded to Respondent 3, Tehsildar, Tehsil-Chhibramau, District-Kannauj for decision afresh after giving notice and opportunity of hearing to respondent 5, Sonu Singh. Admittedly, the order impugned in revision i.e. order dated 12.03.2021 was ex-parte against respondent 5, Sonu Singh. It is by now well settled that a judgment after hearing the parties, is far far better than a judgment ex-parte. Furthermore, there is nothing to show that the order of remand is vague or has been passed to fill in the lacuna in evidence. The judgment relied upon by the learned counsel for petitioner are distinguishable. Moreover, the jurisdiction under Article 226 of the Constitution of India is one of equity and good conscious and also discretionary.
7. In view of above, the present writ petition fails and is liable to be dismissed.
8. It is accordingly dismissed.
Order Date :- 2.2.2024
Vinay
