K. P. Singh, J. - (1.) THIS writ petition has been directed against the judgment of Sri R. S. Verma, Member, Board of Revenue dated 27-10-1980 whereby revision no. 507 of 1977-78 and Reference No. 920 of 1977-78 Allahabad have been decided. The subject matter of the present writ petition is decision concerning revision no. 507 of 1977-78.
(2.) BRIEFLY facts giving rise to the present writ petition are that Beni Prasad filed a suit for declaration under section 229-B of the UP ZA and LR Act against the petitioner and others. The suit was decreed on 18-5-77. The defendant petitioner had filed an appeal against the judgment of the trial Court on 21-5-1977 without attaching the copy of the decree of the trial court with the memo of appeal. The decree of the trial court was prepared on 25-5-1977. It appears that on 8-8-1977 copy of the decree of the Trial court was applied and the same was filed before the first appellate court on 20th August, 1977. An application on 7-10-1977 was filed for treating the appeal against the decree and a prayer for condonation of delay was also made as is evident from Annexure '2' attached with the writ petition. The Additional Commissioner through his judgment dated 16-11-1977 dismissed the appeal as not maintainable and did not accept the contention that the word 'order' was written in the memo of appeal by clerical error. The revisional court in its judgment dated 27-10-1980 by placing reliance upon Rule 6-A of Order XX CPC confirmed the dismissal of appeal by the first appellate court. Aggrieved by the judgment of the revisional court the defendant petitioner has approached this Court under Article 226 of the Constitution. The learned counsel for the petitioner has contended before me that in the circumstances of the present case the learned Member Board of Revenue has patently erred in making the following observation ;- " ...............The question of filing the copy of the decree at a later stage and the question of condoning the delay in filing the copy of the decree does not arise at all. " He has emphasised that the petitioner-appellant was not at fault. The lawyer and the court official are really at fault, and in such a circumstances the above observation of the learned Member is patently erroneous.
(3.) THE second contention raised on behalf of the petitioner before me is that when the decree of the trial court was filed before the first appellate court it was incumbent upon the appellate court and the revisional court to consider the circumstances involved in the present case regarding condonation of delay and they should have treated the appeal filed by the petitioner well within time and they should have decided the claims of the parties on merits, but they have failed to exercise jurisdiction in them by law by dismissing the petitioner's appeal as not maintainable. The learned counsel for the contesting opposite party has tried to refute the contentions raised on behalf of the petitioner. He has emphasised that the defendant-petitioner preferred an incompetent appeal knowingly and deliberately. Hence his appeal was rightly dismissed as not maintainable by the court concerned. It is not a fit case where interference should be made with the impugned judgments. He had placed reliance upon a large number of rulings-Kazmi Begum v. Zawwar Husain, 1954 RD 62, Maro Mst. v. Naubat Singh, 1955 RD 251; Jagat Dhish Bhargava v. Jawahar Lal Bhargava, AIR 1961 SC 832, Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575; Phool Chand v. Gopal Lal, AIR 1967 SC 1470, State of West Bengal v. The Administrator Howrah Municipality, AIR 1972 SC 749 and has submitted that the appeal filed by the defendant petitioner was an incomptent appeal and that the petitioner was not at all entitled to condonation of delay in filing certified copy of the decree of the Trial Court. He has also referred to Order 41 Rule 1 CPC, Paragraphs 161 and 164 of U. P. Revenue Court Manual and Order 20 Rule 6-A of the Civil Procedure Code and has contended that in absence of the decree of the trial court the appeal was rightly dismissed as not maintainable.;