- (1.) S. P. Pandey, J. These are two revisions under Section 331 of UPZA & LR Act, preferred against I he order dated August 5, 1997 passed by the learned Addl. Commissioner, Moradabad Division, Moradabad, allowing the ap plication for restoration and substitution dated 23-10-92 and 16-5-97 respectively. Since the parties as well as the facts are similar in the aforesaid two revisions as such these two revisions are being dis posed of by a common judgment and order. The revision No. 56 of ' %-97/ram-pur shall be the leading case.
(2.) BRIEF and relevant facts of the case are that during the course of proceeding of a 1st Appeal and revision between the same parties before the learned Addl. Commissioner, a restoration application dated 2-12-96 and moved to set aside the ex-pane order dated 23- 1 0-92 passed in the revision and 1st Appeal. An application dated 6-8-92 was moved to set aside the ex-pane order and decree dated 22-1- 90 On 16-5-97an application for subinstitution was moved with the prayer that the respondent O. P. Farzand Ali Khan has died as such his sons be substituted as his heirs and legal representative. The learned Addl. Commissioner by means of his order dated August 5, 1997 allowed the aforesaid ap plications subject 10 payment of Rs. 100 as cost to the respondent O. Ps. Aggrieved by this order the aforesaid two revisions have been preferred. I have heard the learned Counsel for the parties and perused the record, on file. For the revisionist, it was contended that both the revision as well as the appeal were dismissed for default by the learned Addl. Commissioner by means of his order dated 23-10-92 and on the same day an application for restoration was moved in revision as well as in appeal that on 16-5-97 an application for substitution of the heirs to the deceased Far/and Ali Khan was moved but no application for substitu tion was moved in the restoration applica tion, that unless the legal heir and repre sentative of the deceased Far/and Ali Khan were brought on record by moving substitution application in the restoration application itself, The order allowing the restoration application in the aforesaid appeal or in the revision would not be passed that in fact Farzand Ali Khan died on 30-10-92, the substitution application was moved on 16-5-97 but no application for condo nation of delay and for selling aside abatement was moved by The O. Ps. that the learned lower appellate Court has illegally allowed both the aforesaid ap plications on 5-8-97, that the learned lower appellate Court has acted without jurisdiction in contravention of the legal principle as such the aforesaid impugned order dated 5-8-67 be set aside. In reply ilea learned Counsel for the O. Ps. sub mitted that considering the facts and evidence on record the learned Addl. Commissioner has passed the aforesaid impugned order which is quite just and proper as such the same be maintained that the aforesaid application for substitution was moved within 30 days of the date of knowledge, i. e. 25-7-97, that no objection has been fried against the aforesaid substitution application by the revisionist. I have carefully and closely con sidered The contentions raised by the learned Counsel for the parties and have also gone through the records on file. On close scrutiny of the records it is abundant ly clear that in the aforesaid application for substitution neither the date of death of the deceased Far/and Ali Khan has been mentioned nor has been given any applica tion for condo nation of delay in moving the aforesaid application which is highly time barred. Inordinate delay in moving the aforesaid application for substitution has not been sufficiently explained by the O. Ps. without condoning the aforesaid delay under Section 5 of Indian Limitation Act, the learned Addl. Commissioner has erred in law to allow the aforesaid restora tion application has substitution on 5-8-97. From a bare perusal of the records it is manifestly clear that the learned Addl. Commissioner has not followed the proce dure prescribed by law. The aforesaid im pugned order dated 5-8-97 passed by the learned Addl. Commissioner is un- sustainable, unfounded and unwarranted in law as such it cannot be sustained. I find no force in the contentions raised by the learned Counsel for the O. Ps. To my mind it is fit case to be remanded to the learned lower Revisional Court for deciding the aforesaid applications afresh, strictly in consonance with the provisions of law-after affording due and reasonable oppor tunity of hearing and adducing the evidence in support of their claims to the parties concerned.
(3.) IN view of the discussions made hereinabove, I come to conclusion that this revision having force deserves to be allowed and the aforesaid impugned order dated 5-8-97 passed by the learned Addl. Commissioner is liable to beset aside. Consequently, this revision is ac cordingly allowed and the aforesaid im pugned order passed by the learned Addl. Commissioner is hereby set aside and the matter in question is remanded to the learned lower Revisional Court for decid ing afresh,. he aforesaid application for restoration and substitution, following the procedure prescribed by law after afford ing due and reasonable opportunity of hearing and adducing evidence in support of then- claims to the parties concerned which are directed to appear before the aforesaid Court on 28-4-2000. Let the records be returned forth with to Hhc Court concerned. Stay order if any is Hereby va cated. This order shall govern Revision No. 57 (96-97), Rampur also. Revision allowed .;