- (1.) S. P. Pandey, Member. This is a second appeal under Section 331 of UPZA & LR Act (hereinafter referred to as the Act) preferred against the judgment and order dated 14-6-1995, passed by the learned Additional Commissioner, Varanasi Division, Varanasi, in a restoration application for recalling the judgment and order dated 1-3-1986 rendered in Appeal No. 2/30 of 1984.
(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that in the suit filed by the plaintiff, Smt. Raj Kumari under Section 176 of the Act for division of holding, the learned trial Court, after completing the requisite trial, held her share as 1/2 in the land in dispute and passed the preliminary decree accordingly. In appeal preferred by the defendant, Duryodhan, the learned Additional Commissioner allowed the same ex parte, setting aside the decree, passed by the learned trial Court and remanding the suit to it for decision afresh on the point of remarriage of the plaintiff with Vishwanath, after affording an opportunity of being heard and adducing evidence to the parties, concerned, vide his order dated 1-3-1986. On 16-3-1993, Smt. Raj Kumari moved a restoration application before the learned Additional Commissioner for recalling the order dated 1-3-1986, who vide his order dated 14-6-1995, dismissed the same and therefore, it is against this order that the instant second appeal has been preferred by her before the Board. I have heard the learned Counsel for the parties and have also perused the record on file. Assailing the impugned order, the learned Counsel for the appellant contended that the impugned order is bad in law, as the learned Additional Commissioner has erred manifestly in rejecting the restoration application; that since no cogent reason whatsoever has been given by the learned Counsel of first appeal for the rejection of the explanation, tendered by the plaintiff-appellant for the delay in filing the restoration application, the impugned order is no order in the eyes of law; that since it is the settled principle of law that merits of the case cannot be seen while considering the question of limitation, the learned Additional Commissioner has grossly erred in doing so; that since no notice or summons was recieved by her and therefore, she could not contest the first appeal, the order dated 1-3-1986, passed by the learned Court of first appeal was clearly ex-parte; that since the delay in filing the restoration application was also satisfactorily explained by filing an affidavit along with the restoration application in support of the same, claiming that she got the knowledge of the order dated 1-3-1986 for the first time on 14-8-1983, the restoration application was clearly within the period of limitation from the date of knowledge and the observation of the learned Additional Commissioner that filing of the restoration application is nothing but a dilatory tactics is clear without any evidence, on record and is, therefore, baseless; that since the learned first appellate Court has the same powers as that of the learned trial Court, it was not justified in remanding the case to the learned trial Court, as it ought to have decided the issue of remarriage itself; that in any view of the matter, the orders dated 14-6-1995 and 1-3-1986 passed by the learned Additional Commissioner are wholly unjustified, illegal, perverse and against the all cannon of law and therefore, the same cannot be allowed to sustain and this second appeal deserves to be allowed. The learned Counsel for the respondent, in reply, urged that in the facts and circumstances of the instant case, the learned Additional Commissioner was perfectly justified in rendering the impugned order as well as remanding the case to the learned trial Court, as if the theory of remarriage is a fact, the share of the plaintiff would devolve upon the three unmarried daughters of the plaintiff and therefore, the issue of remarriage has a vital role for the decision of the instant case; that the restoration application, filed by the plaintiff was very rightly rejected in view of the fact that no harm or prejudice has been caused to any party, as they would get ample opportunity of being heard and adduce evidence, if any, and therefore, no interference is called for with the impugned orders by this Court, this second appellate stage and as such, this second appeal having no force, very richly deserves dismissal out right. I have closely and carefully considerated the arguments, 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 the first appeal was decided on 1-3-1986 while the restoration application was moved on 16-8-1993, after a lapse of about seven years. In her affidavit, filed along with the restoration application before the learned Additional Commissioner, Smt. Raj Kumari averred that no summons or notice was ever served upon her in respect of the first appeal and therefore, he was not in the know of the same. She got the knowlecdge of the decision of the first appeal on 14-8-1993, for the first time when Duryodhan objected her from conducting the agriculatural activities and soon thereafter she moved the restoration application, claiming the same to be within the period of limiation from the date of knowledge. The learned Additional Commissioner has observed that summonses were issued to her in respect of the first appeal but none responded on behalf of the respondent despite due notice. Even then, the suit was remanded on the point of remarriage. The learned Additional Commissioner has held the restoration application as highly time-barred. It has been observed that in case of the explanation of the applicant being correct, the question arise as to why Duryodhan had not objected her from doing such activities before 14-8-1993 as well, duirng the long period of seven years. It leads to the only conclusion that either she was not doing such activities during this period else she deliberately absconded from appearance before the Court in first appeal and since she could not file any review, appeal or revision against the order in the first appeal, she has now come forward with her aforesaid false averment.
(3.) HAVING given my thoughtful consideration to the matter in question, I am of the considered opinion that whatever reality would have been, the fact remains that no harm of prejudice has been caused to any party by the decision of the learned Additional Commissioner, as the suit has been remanded to the learned trial Court on the point of remarriage of the plaintiff and the parties, concerned shall certainly get ample opportunity to have their say in support of their claim and to adduce evidence, if they so desire and therefore, I entirely agree with the views, expressed by the learned Additional Commissioner because the point of remarriage is rather very vital to the decision of this case in view of the fact that if it is so, the share of the plaintiff would devolve upon her three unmarried daughters. The learned Additional Commissioner has dealt with the matter, in question in a rather very analytical and logical manner in correct perspective of law and the restoration application has very rightly been dismissed, as the applicant has miserably failed to explain satisfactorily the aforesaid delay in filing the same. The suit has also been very correctly remanded to the learned trial Court, as the point of remarriage has bearing upon the decision of the same. No illegality or material irregularity has either been committed by the learned Additional Commissioner in rejecting the restoration application and remanding the suit to the learned trial Court and therefore, in the facts and circumstances of the instant case, he was perfectly justified in rendering the impugned orders with which no interference is called for by this Court at this second appellate stage and as such, this second appeal having no force, very richly deserves dismissal outright. Consequently, this second appeal, being devoid of merits, is accordingly dismissed and the impugned orders passed by the learned Additional Commissioner is hereby confirmed and maintained. Let records be returned forthwith, to the Courts concerned. Parties to appear before the learned trial Court on 10-6- 2003. Appeal dismissed. .;