Ram Surat Ram (Maurya), J. - (1.) HEARD Sri Abhishek Kumar for the petitioner. The writ petition has been filed against the order of Additional Commissioner dated 20.6.2009 allowing the revision of the contesting respondents and directing the Additional Collector to substitute the heirs of deceased party and proceed in the application under section 198(4) of U.P. Act No. 1 of 1951 in accordance with law and the order of Board of Revenue dated 28.2.2014 dismissing the revision of the petitioner against the aforesaid order.
(2.) IT is stated that one Doodhnath Singh filed an application under section 198(4) of U.P. Act No. 1 of 1951 for cancellation of patta in which Raj Bali was impleaded as opposite party. Raj Bali died and the notice regarding death was given to the Counsel for the applicant Doodhnath Singh but no substitution application was filed within time. After expiry of period of limitation as provided for filing substitution application as well as application for setting aside abatement, Doodhnath Singh has filed an application for substitution of heirs of Raj Bali along with a delay condonation application but no application has been filed for setting aside abatement. The Additional Collector, accordingly, rejected the substitution application on the ground that notice of death was given to the Counsel for Doodhnath Singh even then application was not filed within time and there was no application for setting aside abatement as such there was no ground for condoning the delay in filing the substitution application. Accordingly, the application was rejected and the case was abated against deceased Raj Bali by order dated 12.1.2006. Doodhnath Singh filed a revision against the aforesaid order, which has been allowed by the Additional Commissioner by the impugned order dated 20.6.2009 and the Additional Commissioner has directed the Additional Collector to substitute the heirs of deceased Raj Bali and decide the proceeding in the case in accordance with law. The revision filed by the petitioner against the aforesaid order has been dismissed by the Board of Revenue. Hence this writ petition has been filed. The Counsel for the petitioner submits that provision of Code of Civil Procedure has been applied under section 341 of U.P. Act No. 1 of 1951 in respect of entire proceeding under the Act. Therefore, the provision of Order XXII, C.P.C. is fully applicable. The substitution as required under Order XXII, Rule 4 read with Article 120 of Limitation Act provides 90 days limitation for filing a substitution application. In case substitution application is not filed within 90 days then proceeding is abated under Order XXII, Rule 4(3), C.P.C. and limitation for moving application for setting aside abatement under Order XXII, Rule 9, C.P.C. has been provided 60 days under Article 121 of Limitation Act. In this case the death of Raj Bali took place in 2001 while application for substitution has been filed on 28.10.2002 i.e. long after 150 days and there was no application for setting aside abatement. Accordingly, the proceeding has been already abated under the provision of Order XXII, Rule 4(3), C.P.C. The order of Additional Collector rejecting the substitution as well as delay condonation application does not suffer from any illegality. However, the Additional Commissioner has set aside the order of the Additional Collector on the wrong premises that Code of Civil Procedure is not applicable in the proceeding under section 198(4) of U.P. Act No. 1 of 1951. Relying upon the judgment of the Board of Revenue in Yamin v. Alibaz and others,, 1990 RD 364 he submits that the provision of section 341 of U.P. Act No. 1 of 1951 has not been noticed by the Board of Revenue in the aforesaid case and the judgment of Board of Revenue is per incuriam and does not hold the correct law accordingly, the order of Additional Commissioner was liable to be set aside but the revision filed by the petitioner was dismissed.
(3.) I have considered the arguments of the Counsel for the petitioner and examined the record.;