Ram Surat Ram (Maurya), J. - (1.) HEARD Sri Chandra Kumar Rai for the petitioner and Sri S.C. Verma and Sri J.A. Azami for the contesting respondents. The writ petition has been filed against the order of Board of Revenue dated 28.2.2014, allowing the revision and setting aside the orders of appellate Court as well as Trial Court passed on the basis of admission contained in written statement and remanding the matter to the Trial Court for deciding the suit on merit after giving opportunity of hearing to the parties.
(2.) THE petitioner filed a suit under section 229 -B of U.P. Act No. 1 of 1951. In this suit, written statement, admitting the claim of the petitioner was filed and the suit was decreed by the order dated 15.11.2008, in view of admission in written statement. Against the decree of Trial Court, three appeals were filed. The appeals were consolidated and heard by Additional Commissioner, Azamgarh Division, Azamgarh, who by his order dated 12.4.2010 held that as the suit was decreed in terms of admission contained in written statement. Under section 96(3) C.P.C., an appeal against consent decree is barred. The defendant -appellant are denying service of summons of the suit and filing of the written statement then they could have filed an application under Order IX, Rule 13, C.P.C. for setting aside the decree and the appeal was not maintainable. On these finding the appeals were dismissed. The orders were challenged in revisions before Board of Revenue which have been allowed by the impugned order dated 28.2.2014 and the orders of Trial Court as well as the Appellate Court were set aside and the matter has been remanded for trial of the suit before the Trial Court. Hence this writ petition has been filed. The Counsel for the petitioner submits that under section 331(3) of U.P. Act No. 1 of 1951, a second appeal is maintainable against the appellate decree on the substantial question of law. As no substantial question of law was involved as such revision was filed to bye pass the mandatory requirement of substantial question of law. Therefore the revision was not maintainable and ought to have been dismissed on this ground alone. In view of specific provision as contained in section 96(3) C.P.C., the appeals were not maintainable and Additional Commissioner has rightly dismissed the appeals. As the factum relating to service of summons of the suit and filing of written statement was challenged. The trial could was in better position to decide the factum relating to service of summons and filing of written statement. The order of Board of Revenue is illegal and liable to be set aside.
(3.) I have considered the arguments of the Counsels for the parities and examined the records. The revision is filed under section 333 of U.P. Act No. 1 of 1951, which provides that Board can call for record of any suit or proceeding decided by any Court subordinate to him in which no appeal lies or where an appeal lies but has not been preferred, for the purposes of satisfying himself as to the legality or propriety of any order passed in such suit. Thus revision is maintainable in the cases where an appeal lies but has not been preferred. Similar provisions contained in U.P. Consolidation of Holdings Act, 1953. The same controversy has been raised and the matter was referred to and decided by Division Bench in Faujdar Rai v. D.D.C. and others : 2006 (100) RD 462 (DB), Division Bench held that in spite of the fact that the appeal is maintainable and no appeal has been filed, the revision can directly be filed. Thus this case is fully covered by the dictum of Division Bench of this Court. There is no force in this argument.;