Allahabad High Court
Shiv Pratap Tiwari And Another vs Board Of Revenue And 20 Ors. on 19 November, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:180703
Court No. - 49
Case :- WRIT - B No. - 35058 of 2014
Petitioner :- Shiv Pratap Tiwari And Another
Respondent :- Board Of Revenue And 20 Ors.
Counsel for Petitioner :- S.S. Chauhan
Counsel for Respondent :- C.S.C.,Anuj Kumar,M.P.Yadav
Hon'ble Saurabh Shyam Shamshery,J.
1. This matter is listed in top 10 of list, still Sri S.S. Chauhan, learned counsel for petitioners is not present. Sri M.P. Yadav, learned counsel for contesting-respondents is present. As per order sheet, from last about six dates, this matter is simply adjourned.
2. This Court passed following order on 10.07.2014:
?Heard Sri S.S. Chauhan, learned counsel for the petitioners, learned Standing Counsel appearing for the State-respondents and Sri S.K. Yadav, holding brief of Sri Anuj Kumar, learned counsel for the Gaon Sabha.
While assailing the impugned judgment dated 29.11.2014 passed by the learned Member, Board of Revenue, learned counsel for the petitioners contends that the second appeal was not maintainable against the order dated 27.1.2001. In his submissions, against the ex parte decree, initially, the respondent had filed an application under Order IX, Rule 13 of the Code of Civil Procedure (in short, 'the CPC') for setting aside the ex parte decree. The said application was rejected. Now, by giving a U-turn, they filed an appeal, challenging the original decree as well as the order rejecting the application under Order IX, Rule 13 of the CPC. He has also contended that a composite appeal could not be filed against the original decree as well as the order passed under Order IX Rule 13 of the CPC for setting aside the ex parte decree. His further contention is that once the petitioners had chose to seek setting aside the ex parte decree under Order IX, Rule 13 of the CPC, he had to follow up that track and it was not open for him to file appeal against the original decree and second appeal against that judgment was not maintainable.
Matter requires scrutiny.
Issue notice.
Notice on behalf of respondent no. 1 has been accepted by the office of learned Chief Standing Counsel, whereas Sri Anuj Kumar has put in appearance on behalf of respondent no. 22. Therefore, notices need not be served again to the aforesaid respondents.
Issue notice to respondent nos. 2 to 21 through registered post returnable at an early date.
Steps be taken within two weeks.
List on the date fixed by the Office in the notice.
Counter affidavit, if any, may be filed by learned counsel for the respondents by the next date of listing.
As an interim measure, without prejudice to right and contention of the parties, the proceeding of the suit pursuant to the judgment and order dated 29.11.2014 passed by the learned Member, Board of Revenue in second appeal no. 19 of 2000-01 (Ram Pratap and Others Vs. Ram Khelawan and Others) may go on before the court concerned, but the final judgment shall not be delivered till the next date of listing. It is further provided that in the meantime, no third party right shall be created.?
3. Since learned counsel for petitioners is not present, therefore, the Court took assistance of Sri N.C. Rajvanshi, a learned Senior Advocate, who is present in Court. He has rightly pointed out that in the present case an order rejecting application filed under Order IX Rule 13 CPC can be challenged by way of filing First Appeal From Order and no substantive appeal could be filed under Section 331(3) of U.P. Zamindari Abolition and Land Reforms Act, 1950 against said order. However, petitioners have always liberty to challenge the decree of suit, whereby suit was rejected, by way of filing an appeal under said provision.
4. Though an incorrect forum was adopted by the petitioners in challenging both orders, i.e., order rejecting an application under Order IX Rule 13 CPC and rejection of suit, still first appeal was rejected on merit, whereby both said orders were upheld and said order was then agitated before Board of Revenue by filing second appeal under Section 331(4) of Act, 1950 wherein following question of law was framed:
?Whether or not, the learned courts below have appreciated the oral and documentary evidence on record in the correct perspective of law??
5. It has been rightly pointed out that though question of law was framed on merit of case, still Board of Revenue has only considered outcome of application filed under Order IX Rule 13 CPC, which could not be done in second appeal, since it was against the substantive order passed in suit as well as in first appeal thereof. Therefore, Board of Revenue has committed an error by remanding matter only on ground that application under Order IX Rule 13 CPC was not considered in accordance with law.
6. In view of above, writ petition is partly allowed. Impugned order dated 29.11.2013 passed by Board of Revenue U.P. at Allahabad is hereby set aside and matter is remitted back to Board of Revenue to frame question of law afresh and decided second appeal on merit without going into the issue, whether application filed under Order IX Rule 13 CPC was decided correctly or not.
7. The Court appreciates the assistance given by Sri N.C. Rajvanshi, learned Senior Advocate.
8. After the above order was dictated, Sri S.S. Chauhan, learned counsel for petitioners, has rushed to this Court and submits that he has received instruction that one of the petitioner has died, however, details of same are not available with him. He, therefore, prays and granted liberty to file appropriate application for substitution before Board of Revenue within two weeks from today since the matter is remanded back.
Order Date :- 19.11.2024
AK
