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Ram Bali & Others v. Board Of Revenue U.P. At Allahabad & Others - WRIT - B No. 67325 of 2006  RD-AH 20930 (12 December 2006)
Court No. 4
Civil Misc. Writ Petition No. 67325 Of 2006.
Ram Bali and others .....Petitioners.
Board of Revenue U.P. at Allahabad and others ......Respondents.
Hon'ble Anjani Kumar, J.
Petitioner has challenged the order passed by the Board of Revenue dated 12th September, 2006 whereby the Board of Revenue has allowed the revision filed by the contesting respondents.
The facts leading to filing of the present writ petition in brief are that the petitioners who are heirs of late Prithivi Nath filed a suit being Suit No. 175 of 1992 under Section 229-B of U.P.Z.A. & L.R. Act (In short 'the Act') in which contesting respondents Chauthi Ram and others were arrayed as defendants. The aforesaid suit was decreed ex parte by the trial court by the order dated 17.5.1993. The petitioners' case further is that pursuant to the aforesaid decree the name of the petitioners were mutated over the land in dispute. On 9th July, 1993 a restoration application was filed by the defendants for setting aside the ex-parte decree dated 17.5.1993. This application was allowed by the order dated 21.2.2006 and the ex-parte decree dated 17.5.1993 was set aside.
Aggrieved by the order dated 21.2.2006 restoring the suit, the petitioners preferred a revision before the Additional Commissioner. The Additional commissioner by the order dated 31.7.2006 allowed the revision and set aside the order dated 21.2.2006 whereby restoration application filed by the respondents was allowed and remanded the matter to the trial Court to re-consider the matter on the point of limitation. Against this order dated 31.7.2006 contesting respondents preferred a revision before the Board of Revenue. The Board of Revenue by the order dated 12.9.2006 set aside the order passed by the Additional Commissioner dated 31.7.2006 and restored back the order dated 21.2.2006 and remanded back the matter to the trial court to be decided in the light of the judgment passed by the Board of Revenue and thereafter to decide the restoration application on merits. The Board of Revenue further directed the parties to appear on 12.10.2006 before the trial court. The Board of Revenue by the order dated 12.9.2006 which is impugned in the writ petition has set aside
the order passed by the Additional Commissioner dated 31st July, 2006 and restored the order dated 21.2.2006 whereby the trial court allowed the restoration application and set aside the ex parte decree and directed the matter to be heard afresh by the trial court.
Learned counsel for the petitioner has submitted that from the perusal of the order impugned it is apparent that the order passed by the Additional Commissioner directing the trial Court to decide the question of limitation first before passing any order on merits of the restoration application was justified in as much as the trial court has not decided the issue of limitation. The respondents filed recall application for setting aside the ex parte decree and view to the contrary taken by the Board of Revenue suffers from manifest error of law. The Board of Revenue has held that when the trial court has passed the order dated 21.2.2006 on the application for recall of the ex parte decree it will be presumed to have been passed on merits as the application was filed against the order dated 17.5.1993. i. e. the date of ex parte decree. It further says that none of the rights of the petitioner are affected in case, the order dated 21.2.2006 is recalled, in as much as the parties are free to adduce the evidence before the trial Court, as the matter is decided by the trial Court. It is further submitted that the order passed by the Board of Revenue suffers from the error of law inasmuch as the Additional Commissioner has erroneously set aside the order by which the restoration application filed by the respondents was allowed. I do not agree with the petitioners' contention in view of the decision of the Apex Court reported in 1978 ARC 496; Ramji Daas and others Versus Mohan Singh wherein the Apex Court has held that in the matter of condoning delay the Court's approach should be to decide the matter on merits rather than on technicalities.
In view of the above, in my opinion, the view taken by the Board of Revenue do not warrant any interference by this Court under Article 226 of the Constitution of India.
In this view of the matter, this writ petition has no force and is dismissed.
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