N. N. Mithal, J. - (1.) :-
(2.) IN this Writ Petition a very short point is involved. A second appeal was filed by the counsel for the appellant through his local counsel at Aligarh on 19-6-71 which was forwarded by the ADM (R), Aligarh to the Board of Revenue. The appeal was listed for admission on 5-1-1972. Since no one appeared on behalf of the appellant the same was dismissed in default. Thereafter an application for restoring the appeal to its original number was moved before the Board of Revenue accompanied by an affidavit sworn by Shri Bhagwati Prasad Bakshi is Pairokar for the appellant Smt. Sahodara Devi on 23-9-73. A prayer was also made for condoning the delay in filing the application beyond time. The application for restoration as well as the application for condoning the delay under sec. 5 of the Limitation Act were dismissed by the Board of Revenue by its order dated 29th September 1974 which is being impugned in this writ petition. The Board dismissed the application on the ground that a notice was issued to the counsel by the Board as required by Rule 178 of the U.P. Revenue Court Manual in which date fixed for the hearing was mentioned. It is also mentioned in the impugned order that a letter had been issued to the counsel on 15-12-71 through post. As there was no affidavit by the counsel, to whom the notice was sent, that no such notice had been received by him, the Board did not deem the absence of the applicant to have been caused on account of any sufficient cause. In the result the application was rejected and the application for condonation of delay was also dismissed. In this Court the learned counsel for the appellant has submitted that Rule 178 of the Manual had not been complied with as wrongly mentioned by the Board. According to Rule 178 it is necessary that a notice issued under the provisions of Rule 177 regarding the date of hearing of the appeal must be affixed in the appellate court, and a like notice shall either be caused to be served by the appellate court itself on the respondent, or on his pleader, or shall be sent by the appellate court to the court against whose order the appeal is made, and that court shall serve it on the respondent or on his pleader in the manner prescribed by section 195 of the United Provinces Land Revenue Act, 1901. A like notice is also required to be served on the appellant or his pleader. The contention of the learned counsel is that what is required under the rules is not only the sending of the notice but the service of the notice on the pleader. There was nothing before the Board to show that the letter sent by it has been served on the party intended to be served. He has also brought to my notice section 196 of the U. P. Land Revenue Act, 1901 which lays down that every notice under this Act may be served either by tendering, delivering or sending a copy thereof by post, in a cover registered under the Indian Post Offices Act, 1898 to the person on whom it is to be served-- It is, therefore, submitted that a letter sent by ordinary post will not entitle the court to presume that the notice had been served merely because such a notice had been put into transmission through post. This presumtion could apply only in a case in which compliance of Sec. 196 of the U. P. Land Revenue Act had also been made. In the instant case, obviously the letter was sent by ordinary post and not through registered post. There cannot, therefore be any presumption that the letter had reached or had been served on the addressee.
(3.) UNDER Rule 177 of the Manual a notice is to be issued for the date of the hearing of the appeal, if the appeal was not rejected summarily. A notice of such date has to be served in accordance with Rule 178 on the respondent, either by the appellate court itself or through the court against whose order the appeal has been filed. A similar type of notice is required to be served on the appellant or his counsel. There is no separate provision as to how this notice is to be sent but according to Sec. 196 of the U. P. Land Revenue Act, 1901, however, every notice under the Act is required to be served in the manner prescribed therein and from this it must follow that the notice to the appellant or his counsel must also be sent by registered post and not otherwise. UNDER these circumstances I am clearly of the view that the impugned order is not in accordance with law and has to be quashed. The petition is, therefore, allowed. The order dated 29-9-1974 passed by respondent No. 1 is quashed. The Board of Revenue will now hear afresh the application for restoration of the appeal moved by the petitioner on 29-9-73 as also the application under section 5, Limitation Act in the light of the observations made by me in the body of this judgment. There will be no order as to costs. Petition allowed.;