- (1.) THIS is a revision petition under Section 333 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order, dated 31-8-1995, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, is revision Petition No. 24/149 of 1993, dismissing the same and confirming the judgment and order, dated 23-12-1992, passed by the learned trial Court, on an application under Order IX Rule 13 CPC, read with Section 151 CPC, moved in a suit under Section 161 of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant revision petition are that after a suit under Section 161 of the Act for exchange was decreed on 28-5-1988, the applicants, Ram Lal and Mata Badal moved an application under Section 161, read with Order IX Rule 13 CPC on 27-2-1991, alleging that the ex parte decree in question, was got passed in favour of Awadhesh Singh behind their back of which the applicants had no knowledge and praying that the same may be recalled and the suit in question may be restored to its original number and the same be disposed of after impleading them as parties to the same. This application was accompanied by an application under Section 5 of the Limitation Act. The summonses issued and the notice by registered post were not served upon the opposite parties and therefore, the service was effected through publication in Nav Karmyug daily, dated 21-10-1991 and the opposite parties did not appear before the Court despite the same. In the meantime, Kodu Ram etc. filed objections to the effect that the land in dispute has been transferred in his favour by Awadhesh Singh and the application, moved by the applicants highly time barred, illegal and baseless, praying that the application dated 27-2-1991. In question be rejected. The learned trial Court, after completing the requisite formalities, recalled the order, dated 28-5-1988 and restored the suit to is original number, impleading the applicants, Ram Lal and Mata Badal as opposite parties and observing that in case the objector is not prepared to be the plaintiff, the suit in question shall be deemed to be dismissed, vide its order, dated 23-12-1992 against which a revision petition was preferred by Kodu Ram etc. before the learned Additional Commissioner, who has dismissed the same vide his judgment and order, dated 31-8- 1995 and therefore, it is against these orders that the instant revision petition has been preferred by Kodu Ram alias Kodu Prasad before the Board. I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned orders, the learned Counsel for the revisionist contended that since Ram Lal, respondent No. 1, being the marginal witness in both the sale deeds, had full knowledge of the proceedings, in question, right from the very beginning, his restoration application is totally false and fictitious and the view of both the Courts, below to the contrary, is wholly illegal and against the over-whelming evidence on record; that since the revisionist is a necessary and proper party, the learned trial Court erred in deciding his application for impleadment and when he claimed so, the learned trial Court actually erred in deciding the same; that since the farzi entry, made in CH Form 2-A, in favour of the respondent No. 1 was expunged by the Collector, concerned on 27-10-1994, the respondents 1 and 2 have no claim whatsoever over the land, in dispute and the learned Courts, below, have grossly erred in accepting their claim despite the aforesaid fact; that since the view, taken by the learned trial Court, is wholly illegal, as it had to first condone the delay in filing the restoration application and then to proceed with the matter, in question, on merits, the impugned orders are grossly erroneous and perverse in law and that too without taking into account the evidence, both documentary and oral, on record; that since the service of notices upon the respondents 3 to 5. In Ist appeal was not proper in law, the impugned orders are clearly ex parte against them; that in any view of the matter, in the facts and circumstances of the instant case as well as the evidence on record, the impugned orders are clearly illegal, perverse and without jurisdiction, which cannot, at any stretch of imagination, be allowed to sustain and this revision petition very richly deserves to be allowed. In support, reliance has been placed on the case laws, reported in 2001 AWC (Rev) 363, 1999 RD 741. The learned Counsel for the opposite party, in reply, urged that in the facts and circumstances of the instant case, the learned Courts below were perfectly justified in rendering the impugned orders as the suit has been restored to its original number and the parties to it have been impleaded to have their say and therfore, this revision petition having no force very richly deserves dismissal outright. In support, reliance has been placed on the case laws, reported in 1982 RD 189. I have closely and carefully considered the arguments and advanced before me by the learned Counsel for the parties and have also scanned the record. on file. A bare perusal of the record on file clearly reveals that after the exchange in question was allowed by the learned trial Court on 28-5-1988, a restoration application along with an application under Section 5 of the Limitation Act, was filed on 27- 2-1991 by Ram Lal and Mata Badal, alleging that they had no knowledge of the proceedings in question. It is a fact that Ram Lal was one of the marginal witnesses to the sale-deed, executed in favour of the transferee, Kodu Ram and therefore, it does not lie in his mouth to say that he had no knowledge of the proceedings and his claim falls to the ground itself. The other applicant, Mata Badal, vide his application, dated 6-4-1992 himself dis-owned his claim over the land in dispute and therefore, both the applicants have no locus standi to move the restoration application. Moreover, both the applicants were not parties to the original suit under Section 161 of the Act and therefore, the question of their participation in the same does not arise at all and in fact, the same is not necessary. It is also noticeable that the restoration application is highly time-barred, as the impugned order is dated 28-5-1988 while the same has been moved on 27-2-1991 i. e. after a lapse of about 2 years and 9 months and no satisfactory explanation for the delay, caused in moving the same is forthcoming. It is also the settled principle of law that in such a case, the delay should always be first condoned before consideration of the restoration application, on merit, which is badly lacking in the instant case. It is also a fact that the entry of the name of the respondent No. 1 made in Form CH-2-A was ordered to be expunged vide order, dated 27-10-1994, passed by the collector concerned. The Fard-Mitabqat Form CH-41 is on the record, which shows that the new number of old Plot No. 457 has been allotted as 969 and therefore, in view of the above, the learned trial Court was not at all justified in rendering the impugned order, at any stretch of imagination. The learned Additional Commissioner, too has not dealt with the matter, in question in correct perspective of law and has in fact, swayed away on flimsy grounds as he has not considered the aforesaid aspects of the matter in question and therefore, I am of the considered opinion that the restoration of the case to its original number by the learned Courts below, was not at all justified and as such, the impugned orders deserve to be set aside and the revision petition very richly deserves to be allowed. Needless to say, the applicants to the restoration application have nothing to worry about or feel prejudiced or aggrieved, as they can very well get their rights or title to the land in dispute, declared through a regular suit under Section 229-B of the Act, if they so desire.
(3.) IN view of the above, this revision petition suceeeds and is, accordingly, allowed and the impugned orders, passed by the learned Courts, below, are hereby, set aside. IN the result, the restoration appliation, in question, stands rejected. Let records the returned forthwith, to the Courts, concerned. Revision allowed. .;