- (1.) ARUN Tandon, J. Heard Sri Sankatha Rai, Advocate assisted by Sri Ajay Kumar Singh, learned Counsel for the petitioner, Sri M. P. Srivastava, learned Counsel for the respondent No. 5 and learned Standing Counsel for the respondent Nos. 1 to 3. Nobody is present on behalf of the respondent No. 4 even in the revised reading of the cause list.
(2.) RESPONDENT No. 5, Bhuidhar alias Jairam son of Basanta alias Mataru, filed Original Suit No. 821 of 1997 under Section 229-B of the U. P. Zamindari Abolition and Land Reforms Act for declaration that he was the Bhumidhar of Plot No. 977 Ka area 1. 18 acre corresponding to old Plot No. 1157 situated in village Kariyanw, Pargana Ghisuwa, Tehsil Machhlishahr, Jaunpur. The suit so filed was directed to proceed ex parte under order dated 28th July, 1998 and thereafter the Sub-Divisional Officer dismissed the suit even after ex parte proceedings by means of the order dated 28th August, 1998. The plaintiff filed an application for review of the order of the Sub-Divisional Officer dated 28th August, 1998 dismissing the suit. The said application was filed on 9th September, 1998. On the review application an office report was submitted dated 11th September, 1998 wherein it was mentioned that in the original suit proceedings, an order for proceeding ex parte, against the defendant-petitioner had been passed and therefore it is not necessary to issue any notice on the review application to the defendants. In view of the aforesaid report, the Sub-Divisional Officer proceeded to decide the review application without issuing any notice to the defendants and by means of the order dated 16th November, 1998 partly granted the relief prayed for in the said suit, it was directed that the name of the defendants be expunged from the relevant revenue entries in respect of the property in question. Feeling aggrieved by the aforesaid order of the Sub-Divisional Officer passed on the review application the defendant- petitioners filed a revision before the Commissioner, Varanasi Division, Varanasi, which was numbered as Revision No. 139 of 1999 (a copy whereof has been enclosed as Annexure No. 20 to the writ petition ). The plaintiff also filed a Revision against the part of the judgment and decree of the Sub-Divisional Officer, whereby certain reliefs prayed for were denied, which was numbered as Revision No. 49 of 1998. Both the revisions were clubbed together and have been decided vide order dated 30th July, 2003 by the Assistant Commissioner (Judicial First), Varanasi Region, Varanasi. The Assistant Commissioner has dismissed both the revisions affirming the order of the Sub- Divisional Officer dated 16th November, 1998. It is against the aforesaid order of the Assistant Commissioner dismissing the revision as filed by the defendants-petitioners, that the present writ petition has been filed.
(3.) IT is contended on behalf of the petitioner that the procedure adopted by the trial Court/sub- Divisional Officer for the purpose of deciding the review application is manifestly illegal and in violation of the principles of natural justice. IT is submitted that even if the defendant-petitioner had not participated in the suit proceedings at the trial stage, it was mandatory for the trial Court to have issued notices to the defendants before proceeding to entertain and decide the review application on merits. IT is further submitted that despite specific pleas having been raised by the defendants in his revision before the Commissioner, the Commissioner has not taken note of the said contention nor he has recorded any finding in respect thereto. Petitioner contends that violation of principles of natural justice vitiates the entire proceedings, which have been taken against the petitioner and therefore both, the order of trial Court as well as of the Commissioner are liable to be set aside and the matter be remanded to the trial Court to decide the review application afresh strictly in accordance with law after affording opportunity of hearing to the petitioner. In reply it is contended on behalf of the respondents that the trial Court had issued notices at the initial stage of trial of the suit filed by the plaintiff and despite sufficient knowledge of the suit proceedings the petitioner had not participated in the same. It is further contended that the Sub- Divisional Magistrate has recorded finding of fact based on material on record and as pleaded by the parties, therefore there is no illegality or infirmity in the order passed by the Sub-Divisional Magistrate. The Revisional Court has limited jurisdiction and therefore could not re-appraise the evidence qua service of notices on the review application which was necessarily required for arriving at a finding that petitioner has not been served. The proper remedy for the petitioner was to file a recall application before the trial Court. It is therefore, submitted that the writ petition as filed by the petitioner has no merits and is liable to be dismissed.;