Decided on May 15,2013

Rakesh Khurana Appellant
JAITOON Respondents


KALYAN JYOTI SENGUPTA, J. - (1.) IN this matter affidavits have been exchanged. The matter has to be admitted for formality. This application under Article 227 of the Constitution of India has been filed against the order dated 28th March, 2012 passed by learned Additional Chief Revenue Commissioner in Civil Revision No. 113 of 2010.
(2.) THE impugned order passed on an application for revision filed by the petitioners before the learned Additional Chief Revenue Commissioner. The petitioners are the transferee of the property in question after the decree was passed. A decree was passed in favour of the predecessor in title of the petitioner on 19th May, 2004 perfecting their title in the property and the petitioners purchased the property on 28th December, 2004. Before this purchase the Forest Department made an application on 25th November, 2004 for review of the decree dated 19th May, 2004. This review application was allowed by the learned trial authority by order dated 2nd February, 2005. Thus, the suit was originally restored on file for fresh hearing. The petitioners before me preferred an appeal against the order allowing the review application dated 2nd February, 2005 after purchasing the property. The said appeal came to be disposed of by order dated 24th September, 2007 without recalling the order dated 2nd February, 2005. Long thereafter the petitioners filed a revision application on 5th May, 2010 and this revision application was dismissed by the impugned order with reasons. One of the findings recorded in the impugned order that the petitioners before me had already accepted the order of the appellate authority dated 24th September, 2007 by making an application for impleadment of the Forest Department as well as State Infrastructure & Industrial Development Corporation Uttarakhand Ltd. (hereinafter referred to as 'SIIDCUL) being the transferee of the right and interest of the Forest Department. This fact, however, is not disclosed in the present writ petition.
(3.) A supplementary counter affidavit has been filed by respondent No. 7 wherein it has been specifically mentioned that the petitioners before us have already complied with the order passed by Additional Commissioner and therefore, they could not have challenged the same before any forum and, therefore, the present writ petition is itself not maintainable. It is also stated in the supplementary counter affidavit that in pursuance of the order dated 24th September, 2007, the petitioners have taken step for impleadment of Forest Department as well as SIIDCUL as the parties which is evident from the amended plaint. The copy of the application is also annexed to this supplementary counter affidavit. This supplementary counter affidavit was filed on 1st March, 2013 and subsequently, it was taken on record. A comprehensive affidavit of rejoinder has been filed on 14th March, 2013. The aforesaid statements and averments have not been denied and disputed nor there has been any comment with this regard. Narration of the facts, as above, will clearly shows that the petitioners have suppressed, relevant and material fact, as the order dated 24th September, 2007 has been accepted and carried out and after having accepted the same, the petitioner filed the revision application before the learned revisional court below. After accepting an order as urged by the learned Advocate General, the litigant cannot be allowed to turn round and take action against the same very order, simply it is an action of approbate and reprobate.;

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