- (1.) S. K. Singh, J. Heard Sri Roy in support of this writ petition and Sri R. C. Singh who appears for the respondents.
(2.) CHALLENGING in this writ petition is the judgment of the Board of Revenue dated 17. 7. 1990 by which the revision filed by plaintiff-respondent was allowed and the ex parte decree dated 27. 5. 1970 was maintained. For disposal of the writ petition facts in brief will suffice. A suit was filed by the plaintiff-respondent under section 229-B of the U. P. Z. A. & L. R. Act impleading Lal Das, Municipal Board and the State in the year 1969 which was decreed ex parte by its judgment dated 27. 5. 1970. It is thereafter in a proceedings under section 145 of the Cr. P. C. the petitioner got possession over the land in dispute on account of which the plaintiff Madho Das had to file a fresh suit i. e. O. S. No. 360 under section 229-B/209 of U. P. Z. A. & L. R. Act impleading the present petitioner besides others. The claim of the present petitioner is that in view of the averments as made in the plaint, he came to know about the decree passed in earlier suit and it is thereafter recall application was filed to set aside the ex parte decree dated 27. 5. 1970. The Trial Court on consideration of facts allowed the recall application by its judgment dated 10. 7. 1987. Petitioner claims that a restoration application was filed by the plaintiff before the Trial Court but that was not pursued and he filed revision challenging the order dated 10. 7. 1987, but the revision was dismissed by the Additional Commissioner by its judgment dated 30. 7. 1988. After dismissal of the revision second revision was filed by the plaintiff before the Board of Revenue and that was allowed by judgment dated 17. 7. 1990 and the said judgment is being challenged in the present writ petition. The submission of the learned Counsel for the petitioner is that although in the suit filed by the plaintiff-respondent he was not impleaded as a party but he was necessary and proper party in the suit and thus on filing the application to set aside the ex parte decree the Trial Court set aside the ex parte decree and revived the suit and the revision filed by the plaintiff was also dismissed by the Addl. Commissioner; then it was not open for the Board of Revenue while exercising the revisional powers to set aside the orders passed by the two Courts by which just a restoration was granted. Submission is that although before the Trial Court petitioner had no opportunity to place his arguments/evidence but from the orders passed in a prosing under section 145 Cr. P. C it is clear that the documents in the shape of Khewat and the Khasra extract etc. were filed which are referred in the judgment by the Court in a proceedings under section 145 Cr. P. C. that petitioner has prima facie interest and these documents have been just placed on record of this Court to satisfy the conscience of this Court that petitioner have interest in the property which might be ultimately accepted or not but in these situation he can be said to be necessary/proper party in the suit filed by the plaintiff and thus if on these facts restoration has been granted by the Trial Court and Addl. Commissioner then that was not to be interfered by the Board of Revenue in the revisional exercise. Submission is that even if a person is not a party in a proceedings if he demonstrate his interest then instead of relegating him to file a separate suit and have a long running possession he can always be permitted to file a recall application and on the same proof of his interest in the property the application is to be allowed then that will be in the interest of justice and even plaintiff will be saved for his harassment and rigors of a lengthy litigation of a fresh suit and therefore if the restoration has been granted then interfere by the Board of Revenue is to be interfered by this Court.
(3.) IN support of this aforesaid reliance has been placed on a judgment given by this Court in the case of Sura; Dev. AIR 1978 Alld. Page 23 6. IN response to the aforesaid Sri Singh submits that as on the date of filing of the suit present petitioner was not recorded he was rightly not impleaded as defendant in the suit. Plaintiff can be expected to be implead only that party who is recorded under the revenue record and therefore if the petitioner has any claim to the land in dispute it was and it is always open for him to file his independent suit and to got his rights decided. It is further submitted that petitioner cannot take advantage of certain documents so referred in the supplementary affidavit and is placed on record of this Court as documents will have to be admitted in view of Order XLI, Rule 27 of Civil Procedure Code. If the Board of Revenue on the existing facts and material which is available on record refused to accept the setting aside the ex parte decree and has maintained the exparte decree no exception can be taken to. IN support of the submission that a person who is not a party is not entitled to file recall for which reliance has been placed on a judgment reported in 1979 A. LJ. N. O. C. Page 24. IN support of the submission that the supplementary affidavit and the documents placed of record is not to be accepted. Reliance has been placed upon a judgment in 1992 A. W. C. (Supplement) Page 17. 7. IN view of the aforesaid this Court has to decide the claim of the parties. 8. There is no dispute that petitioner was not party in the suit filed by the plain tiff which was decreed. There is also no dispute about the fact that Lal Das was impleaded as party and he did not contest and he did not appear. It has been found that he is Farar and was not available since more than 7 years. There is no dispute about the fact that after the decree passed in favour of the plaintiff proceedings under section 145 Cr. P. C. took place in which petitioner's prima facie right and possession was found. Judgment of proceedings under section 145 Cr. P. C. is on record in which there is a reference of filing of Khe-wat of 1379 Fasli Khasra of 1334 Fasli and other documents which indicate the name of the petitioner having share in the land. The right of the petitioner may have continued or extinguished but that can be subject-matter of Court writ. 9. Although this may be right that in a writ petition no fresh document is to be permitted for deciding the rights of the parties, but at the same time keeping in mind the details of certain documents which are already on record in the proceedings under section 145 Cr. P. C. if the petitioner has brought on record certain document and has stated in the supplementary affidavit and a counter affidavit has been filed to those averments in which there is no specific denial about the genuineness of those documents, irrespective of the fact that this may not be a stage for challenging the genuineness/merit in those documents, this Court is of the view that as of today this Court is to ascertain just a prima facie interest of the petitioner in the land in dispute irrespective of its existence and acceptance. The Trial Court had decided the recall application believing the petitioner's version that on filing second suit by the plaintiff i. e. O. S. No. 360 in which a relief was claimed by the petitioner, he came to know about the earlier decree permitted the revival of the suit and that was maintained by the Addl. Commissioner then this Court is of the view that Board of Revenue exercising the revisional power cannot be said to be empowered to intervene in the discretion so exercised by the first Court for restoring the suit. It is not to I e repeated that a revisional exercise is juice limited and unless it is found that exercise of the discretion by the Trial Court is betray and whimsical, the revisional Court is not to set aside by substituting its own decision. 10. From the documents which are referred in the orders of 145 Cr. P. C. proceedings and has been placed on record, although they are to be decided as and when parties lead their evidence, this Court is convinced that petitioner was necessary/proper party in the proceedings and therefore if the Trial Court allowed the restoration and permitted for the revival of the suit then the interference by the Revisional Court has to be interfered by this Court exercising equity powers. 11. So far as the judgment on which reliance has been placed by Sri Roy this Court is of the view that it has full application to the facts of the present case whereas the judgment on which reliance has been placed by Sri Singh, has no application to the facts of the present case. This Court exercising equity powers is not to entertain the technical submission as this Court is meant for doing substantial justice. On the facts this Court is satisfied that if the order of the Revisional Court is maintained then that will cause irreparable injury to the petitioner and that will not be in the interest of justice. The submission of Sri Singh that remedy of the petitioner is by way of separate suit can be said to be totally misconceived for the simple reason that the same facts and evidence the petitioner is to plead and prove hi the separate suit and if same thing is permitted to be proved by the participation in the present suit itself then that will avoid the multiplicity of the proceedings and the revival of the present suit will make the proceedings compact and that will be in the interest of justice for both sides. Even if the petitioner files his separate suit, the plaintiff-respondent will have to fight in that suit and therefore the objection of Sri Singh has to be over ruled. 12. At this stage Sri Singh comes with the submission that his client has already filed a suit under section 229-B/209 of the U. P. Z. A. & L. R. Act on account of the order passed in favour of the petitioner under section 145 Cr. P. C. and therefore if the first suit is permitted to be revived then both suits are directed to be clubbed and they are directed to be decided within the time bound shedule then that will give justice to the plaintiff-respondents and probably the petitioner can have no objection. 13. Accordingly, so far as the impugned order is concerned this Court is of the view that the petitioner has made out a case for interference. Thus the writ petition succeeds and is allowed. The order passed by the Trial Court dated 10. 7. 1987 reviving the suit is hereby maintained. Besides, the aforesaid as submitted by Sri Singh and agreed by Sri Roy this Court directs that O. S. 360 which is pending consideration and the second suit had to be clubbed with the suit which has been directed to be revived. It will be the concern of the first Court to move very fast in the proceedings with the disposal of the suit and both sides have undertaken before this Court not to take any unwanted adjournment unless it is required for very compelling reasons to decide the suit finally properly within a period of 9 months from the date of receipt of the certified copy of this order from either of the parties. On the decision of the suit as and when the matter is taken to the higher forum, it will be concern of higher form also to decide the appeal etc. with all expedition at their command. 14. With the aforesaid direction this writ petition stands allowed/disposed of. 15. On the facts keeping in mind the restraint order issued by this Court when the writ petition was entertained this Court further directs that till decision of the suit none of the parties will create any third party interest. 16. It is however made clear that any observation if made in this judgment in favour of either of the parties on the merit that will not be treated to have any guiding effect on the Courts below and it will be always independent exercise of all Courts to decide the proceedings before them in-dependently, in accordance with law. Petition Allowed/disposed Of. .;