RAM JANAM SINGH, j. - (1.) THIS revision has been filed by Luxmi Narain and others against the judgment dated 5-2-2002 passed by Additional Commissioner, Bareilly Division.
(2.) I have heard the learned counsel for the parties at length and gone through the records of the case carefully. The learned counsel for the revisionists contended that service on the revisionists were affected through publication. In fact, earlier notices were not issued on the proper addresses. No registered notices were sent to the revisionists and the learned trial Court after hearing both the parties on the restoration application arrived at a conclusion that the delay in filing the restoration application was not intentional and the intention behind that was not bad also and he relied the earlier order passed by him and restored the case to its original number. The earlier suit was decided exparte by the learned trial Court. Aggrieved by this order Sita Ram preferred an appeal before the Commissioner Bareilly. the learned Additional Commissioner, without confining himself to the restoration application set aside the order of the learned trial Court for restoring the suit to its original number and gave a judgment on merits which was not warranted at that time because the revision was confined to the restoration application only which was allowed by the learned trial Court and the suit was restored to its original number. He was supposed to give his judgment on the restoration application- whether it was rightly allowed by the trial Court-instead of that he has considered the case on merits and concluded that the revisionists had no right over the land in dispute. How he has arrived at this conclusion is very strange. When no written statement was filed by the defendants and no issue was framed then the suit cannot be decreed on merit rather it was decided ex-parte by the trial Court. Hence, the Additional Commissioner has erroneously and contrary to the provisions of law allowed the revision by passing the order on merits. In support, he has cited L.C.D. 1999 page 1411, wherein a Division Bench of the Hon'ble High Court has given a finding that substituted service by affixation and by publication should not be made a practice. Whatever, system has been given that should be followed and lastly if the defendants did not turn only then this step should be taken. The learned counsel also contended that once the discretion is used by a Court the superior Court should not normally interfere. In support, he has cited ruling of Hon'ble Supreme Court in R.D. 98 page 607. Thereafter he concluded his argument by requesting the Court that the order passed by learned trial Court be confirmed and the order passed by learned Additional Commissioner be set aside and the case be remanded back to the learned trial Court for fresh decision after affording an opportunity of hearing to both the parties.
(3.) CONTRARY to this, the learned Counsel for the opposite-parties vehemently opposed the argument of the learned counsel for the revisionist and argued that a case regarding the land in dispute had earlier been contested between the parties and the suit was decreed on the basis of compromise between the parties. Plot No. 297/1 had been given in the share of Bholanath, Phool Chand and Ramdin and they transferred their share to Smt. Shakuntala Devi and subsequently Smt. Shakuntala Devi transferred her share to Smt. Munni Devi. After the death of Smt. Munni Devi her legal heirs are in possession. He argued that the submissions made by the learned counsel for the revisionist are contrary to the facts. He has not locus standi. He submitted that the finding given by the learned Additional Commissioner is perfect and the present revision has got no force and should be dismissed.;