- (1.) THIS is an application under Article 226 of the Constitution praying for the issue of a writ of 'certiorari'. The application is supported by an affidavit in which the facts are set out.
(2.) IT appears that the applicant instituted a suit for division of cerain holdings under Section 49, u. P. Tenancy Act, and claimed one third share therein. The suit was dismissed by the He-venue officer and on appeal, the order of dismissal was confirmed by the Additional Commissioner. Thereafter a second appeal was filed before the Board of Revenue. In due course, the appeal came on for hearing under Order 41, Rule 11, Civil P. C. , and it was dismissed summarily on 22-11-1949. Consequent upon the dismissal of the appeal, an application lor the review of judgment was filed which was also dismissed on 15-6-1950. It appears from the affidavit in support of the application that the appellant had engaged a lawyer to argue her appeal before the board of Revenue but no opportunity was given to the pleader to argue the appeal and it was dismissed under Order 41, Rule 11, Civil P. C.
(3.) LEARNED counsel for the applicant contended that the Board of Revenue was bound to give the appellant, or her pleader, an opportunity to be heard before it dismissed the appeal on 22-11-1949. In this connection, reference has been made to the second schedule, appended to the u. P. Tenancy Act 1939. In list II of the second schedule certain sections and orders of the Code of Civil Procedure are specified and it is provided that they would apply to suits or proceedings under the Tenancy Act with the modifications stated against each. Serial No, 13 in list II relates to Order 41, Rule 11, Civil P. C. The modification contained in the third column reads as follows: "nothing in this rule shall require the Board to hear any "party" before rejecting an appeal summarily. ";