S.P.PANDEY, j. - (1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order dated 6-3-1995, passed by the learned Additional Commissioner, Jhansi Division, Jhansi, in appeal No. 21/231 of 1992-93/Lalitpur, dismissing the same and confirming the judgment and order dated 23-10-1992, passed by the learned trial Court on the restoration application moved in a suit under Section 176 of the Act.
(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that after the final decree was passed on 26-3-1982 by the learned trial Court in a suit under Section 176 of the Act, instituted by Chhotey Raja against Sawant Singh etc., on 7-7-1992, a restoration application under Order IX Rule 13 CPC was moved by Indrapal Singh S/o Sawant Singh, defendant No. 1 and father of Lakhan Singh, defendant No. 3, who died in 1984, for setting aside the ex parte preliminary as well as final decrees, passed in the aforesaid suit, inter alia pleading that no notice or summons were ever served upon his father, defendant No. 1 (since deceased), against which the plaintiff, Chhotey Raja filed his objections on 22-9-1992. The learned trial Court, after hearing the parties concerned, set aside the preliminary as well as final decrees, dated 14-12-1981 and 26-3-1982 respectively, vide its order dated 23-10-1992, restoring the suit to its original number against which an appeal was preferred by Chhotey Raja before the learned Additional Commissioner, who has dismissed the same, vide his judgment and order dated 6-3-1995 and therefore, it is against these orders that the instant second appeal has been preferred by him 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 main thrust of the contentions of the learned Counsel for the appellant are - firstly, that setting aside of the decrees and restoration of the suit to its original number is not at all possible without condonation of delay in filing the restoration application under Order IX Rule 13 CPC and since the same was highly belated and no satisfactory or reasonable explanation for the same was given by the applicant, such restoration was not at all justified in the eyes of law and secondly, that since the preliminary and final decrees were passed by the learned trial Court, after due notice to Sawant Singh upon him summonses were duly served as per rules on the subject, such decrees cannot, at any stretch of imagination, be categorised as ex parte and therefore, since delay of about 10 years has not been explained by the applicant and condonation of the same is also badly lacking in the instant case, this second appeal very richly deserves to be allowed in toto. The learned Counsel for the respondent, in reply, urged that since the summonses were not served upon Sawant Singh as per para 73 of the Revenue Court Manual, such a service cannot be said to be sufficient and therefore, in the facts and circumstances of the instant case as well as the evidence on record, the learned Courts below were perfectly justified in setting aside the preliminary as well as final decrees and restoring the suit to its original number and therefore, this second appeal, having no force, very richly deserves dismissal outright. In support, reliance has been placed on the case laws, reported in 1988 AWC 1433 and 2003 SAC 258.
(3.) I have closely and carefully considered the argument advanced before me by the learned Counsel for the parties and have also scanned the record on file. At the very outset, it is pertinent to mention here that in a case of restoration, where a point of limitation is involved, as per the settled principle of law, the Courts should always resort to considering the question of limitation first and the restoration of the case should also invariably be passed after due condonation of delay in filing such restoration application. Here, in the instant case, it is true that the preliminary decree as well as final decree were passed on 14-12-1981 and 26-3-1982 respectively. As a matter of fact, it is also apparent from a perusal of the record that the restoration application under Order IX Rule 13 CPC was moved on 7-7-1992 by Indrapal Singh, after a lapse of about 10 years and question of limitation is certainly involved in such a case. The learned trial Court, while dealing with the matter in question, has not at all dealt with this material aspect of the same despite the fact that such an objection was raised by the plaintiff, Chhotey Raja in his objections, on record. Such consideration also escaped notice by the learned Additional Commissioner, while disposing of the appeal and therefore, I, in the facts and circumstances of the instant case, am, without commenting upon the merits of the case, fully convinced that the impugned orders have not been passed as per law on the subject and as such, this is rather a fit case to be remanded to the learned trial Court for decision afresh of the restoration application on merits, according to law, after considering the point of limitation and affording due and reasonable opportunity of being heard and adducing evidence, if any, to the parties, concerned, in the light of the observations made hereinabove. The contentions of the learned Counsel for the respondent, who has miserably failed to establish his claim, are rather untenable for the same reason. The case laws, cited by him are also of no help to him for the simply reason that the facts and circumstances of the instant case are rather quite different from those of the reported case.;