WPMS/1287/2015
2021 Latest Caselaw 4909 UK

     IN THE HIGH COURT OF UTTARAKHAND
                       AT NAINITAL
         ON THE 3RD DAY OF DECEMBER, 2021
                             BEFORE:
      HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI


       WRIT PETITION (M/S) No. 1287 of 2015

BETWEEN:

Jodha Ram & others.                               ..........Petitioners
       (By Mr. Siddhartha Singh, Advocate)

AND:
Ramesh Chandra Sharma & others.                  ....Respondents
       (By Mr. Piyush Garg, Advocate for respondent no. 1 and Mr.
       T.S. Phartiyal, Additional Chief Standing Counsel for the State
       of Uttarakhand/respondent nos. 2 & 4)


                          JUDGMENT

Petitioners have challenged interim order dated 26.05.2015 passed by Board of Revenue, Uttarakhand in Second Appeal No. 136 of 2014-2015. By the said order, respondent no. 1, who was defendant in Declaratory Suit No. 22/107/ of 1985- 86, was permitted to file written statement to the plaint, before the Second Appellate Court.

2. Learned counsel appearing for the petitioners submits that such a relief could not have been granted at the admission stage, without final adjudication of the second appeal. He further submits that trial Court has closed opportunity of respondent no. 1 of filing written statement and First Appellate Court also had refused to interfere with trial Court's order.

3. Learned counsel appearing for respondent no. 1 fairly concedes that such opportunity could not have been granted by an interim order and such relief could have been granted only while deciding the appeal.

4. Since learned trial Court had closed opportunity of filing written statement to respondent no. 1, which was unsuccessfully challenged by him in first appeal, therefore, in the humble opinion of this Court, Board of Revenue erred in granting opportunity to file written statement to respondent no. 1 by the impugned order, which does not decide the Second Appeal. Even otherwise also, Chairman, Board of Revenue has not assigned any reason for granting opportunity to appellant for filing written statement in Second Appeal. On this short point alone, impugned order dated 26.05.2015 is liable to be quashed.

5. Accordingly, the writ petition is allowed and the impugned order dated 26.05.2015 is quashed. It shall be open to respondent no. 1 to move application for conversion of second appeal to revision and such application, if filed, shall be considered, as per law.

6. It goes without saying that learned Board of Revenue will decide the matter on merit, untrammelled by any observation made in this order.

(MANOJ KUMAR TIWARI, J.) Navin