- (1.) THIS is a petition under Article 226 of the Constitution. The petitioners filed a suit under section 180, of the U. P. Tenancy Act in respect of certain plots of land against the respondent-No. 2. The suit was decreed by the trial court but was dismissed by the Additional commissioner of Agra. The petitioner then filed a second appeal before the Board of Revenue. This appeal was filed on 29-7-1950. Before, however, the appeal could be heard on merits, a vesting order was passed under Section 4, U. P. Zamindari Abolition and Land Reforms Act (No. 1 of 1951), on 1-7-1952. Certain rules were framed under the said Act and under Rule 4 of the rules the Board of Revenue ordered the hearing of the appeals to be stayed on the merits and fixed 10-11-1953 for hearing the parties under Rule 5 (a) (I) of the rules in order to determine whether the appeal should be abated or not. One Member of the Board of Revenue heard the appeal on that date and passed an order on 12-11- 1953 holding that the suit and the appeal should both be held to have abated. On 18-12-1953, another Member of the Board concurred in this order. The result of these two orders was that the petitioners' appeal and the suit were held to have abated.
(2.) THE present petition was filed on 2-3- 1954 praying for the quashing of the orders of the members of the Board of Revenue dated 12th. November and 18-12-1953 already referred to above and to direct the Board to hear and decide the appeal on merits.
(3.) IT is not contended by the learned counsel that the decision of the Board that Rules 4 and 5 apply to the case and that the appeals had to be declared to have abated under those rules was an incorrect decision. What he has submitted before me is that these rules are ultra vires and should not have been acted upon by the Members of the Board. He has urged a number of grounds on which he asserts that the rules should be held to be ultra vires. He has challenged the validity of rules Nos. 4 and 5 only framed under the Act. The first contention of the learned counsel is that Section 6 (1) only says that suits and proceedings of the nature to be prescribed shall be stayed and the rule does not say that the appeals are also to be stayed. Rules 4 and 5 permitted the stay and the abatement of the appeals as well as the suit. The argument of the learned counsel is that the rules in respect of the abatement of appeals were not authorised by Clause (1) of Section 6, U. P. Zamindari Abolition and Land Reforms Act. I do not agree with the contention because the word 'suits' really includes appeals also. The appeals are really a continuation of the suits and the suits continue not only in the court of the first appeal but also in the court of the second appeal. There are a number of decisions of this court on the point, and it is not necessary to mention those decisions. It is well settled that the word 'suit' includes appeals and Section 6 (1) which permitted the framing of rules with respect to abatement of suits, therefore, also conferred power on the State Government to frame rules with respect to abatement of appeals as well.;