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Aftab Ali v. State Of U.P. Thr' Collector, Rampur & Others - WRIT - C No. 73894 of 2005 [2005] RD-AH 7476 (14 December 2005)


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                                                                                      Court No.5.

Civil Misc. Writ Petition No. 73894 of 2005

Aftab Ali.                                    Vs.                  State of U.P. and others.                                                

Hon'ble Janardan Sahai, J.

         A suit under section 229-B of the U.P.Z.A. & L.R. Act was filed by the petitioner, which was dismissed by the trial court. Aggrieved, the petitioner filed a revision, which was allowed by the Additional Commissioner by order-dated 21.4.2003. An application for recall of that order was filed by respondent no.5. Nawab Sayed Mohammad Ali Khan alias Murad Miyan. The said application was allowed by the Additional Commissioner by order-dated 25.1.2005 and it has been directed that the revision shall be heard again. Against this order the petitioner has filed the present writ petition. The finding recorded in the order dated 25.1.2005 is that the order dated 21.4.2003 was obtained by the petitioner by fraud and the respondent no.5 was a person affected but the order was obtained without impleading him and without notice to him.


               Sri K. Ajit, learned counsel for the petitioner assailed the order passed by the Additional Commissioner on the ground that the application was really a review application and not one for restoration and the Additional Commissioner has no power of review. Secondly, it is submitted that the respondent no.5 was not a party in the proceedings and he had no right to maintain the application. Thirdly, it is submitted that the order-dated 21.4.2003 could not have been set-aside without notice to the petitioner.

          The power, which the court has exercised, is in the nature of restoration. The ground upon which the application has been allowed is that although respondent no.5 was a necessary party the order was obtained without impleading him and without notice to him. It is, therefore, not a review application as is being contended by the counsel for the petitioner.  In Surajdeo Vs. Board of Revenue, U. P. Allahabad and others   A.I.R. 1982 Allahabad 23  it was held by this Court that a person who is not a party in a suit may maintain the application in any case under Section 151 C.P.C. if he is aggrieved and more so if the case of one of fraud. The finding recorded in the impugned order is that the earlier order dated 21.4.2003 was obtained by fraud. The respondent no.5 could therefore maintain the application.

                If the petitioner is aggrieved by the fact that the order-dated 25.1.2005 was obtained without notice to him and the findings on merits recorded therein are erroneous. It is open to him to make an application before the Additional Commissioner for setting aside that order. This is sufficient to dispose of the petitioner's contention that the order dated 25.1.2005 was ex parte.

            While the order was being dictated learned counsel for the petitioner sought to make another contention. The contention is that the restoration application was not accompanied by an application under Section 5 of the Limitation Act. The ground for moving the application was that the respondent no. 5 was not impleaded as a party. In the circumstances limitation would run against him from the dater of knowledge. There is no material filed by the petitioner nor the counsel could refer to any to indicate that the respondent no.5 had any earlier knowledge about the order. This contention therefore has also no force. Dismissed.




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