J.J.MUNIR ,J. - (1.) This writ petition has been filed challenging an order of the Board of Revenue U.P. at Allahabad in Revision No. 788 of 2019 carried from an order of the Sub Divisional Officer First, Mathura in Suit No. 17 of 2012-13. The Court of first instance by the order last mentioned has set aside its earlier order of 07.08.2015 whereby, opportunity of the State-respondent no. 4 to file a written statement in Suit No. 17 of 2012-13 was closed. The Sub Divisional Officer by order of 30.01.2019 after setting aside the order of 6.08.2015 has granted time to the State to file a written statement. The petitioner was aggrieved by this order in the context of proceedings of the suit pending since the year 2009, where the State has not cared to file a written statement in all this while. They have been lingering on the matter on the pretext that they have some preliminary objection to raise. The Board of Revenue by the order impugned has dismissed the Revision and affirmed the order of Trial Court dated 30.01.2019, setting aside the earlier order closing opportunity to the State to file a written statement.
(2.) Heard Shri Viveka Nand Rai, learned counsel for the petitioner. Admit.
(3.) Issue notice returnable forthwith. Shri Rajesh Kumar waves service on behalf of the respondent nos. 1,2 and 4, Shri Ashish Kumar Srivastava, likewise waves service on behalf of the respondent no. 3. Shri Rajesh Kumar on behalf of the respondent nos. 1, 2 and 4 and learned Standing Counsel for the Gaon Sabha have come forward with a statement made at the Bar that they do not intend to file a return/ counter affidavit. The matter is, accordingly, being heard and decided on the available material. A perusal of the impugned order passed by Sub Divisional Officer and the course of suit indeed shows that the proceedings of the suit under Section 229 B has been lingering on at a very incipient stage for a long period of time. The State have not filed a written statement in all these years which led the Sub Divisional Officer to pass that order of 07.08.2015 whereby, he closed opportunity of the State to file a written statement. This order came to be made in consequence of a stand by the State that they had a preliminary objection that the suit was not maintainable. The State may be right about the objection that they intend to take, or they may be wrong but the course open to the State to take their objection is through an application under Order VII Rule 11 CPC or by way of a plea raised in the written statement that the suit is not maintainable. The State after filing a written statement, later on, could have requested the Court to frame a preliminary issue about maintainability of the suit. The preliminary issue could, subject to discretion of the Court, exercised along settled principles have been decided as a preliminary issue, or alongwith the other issues at the hearing of the suit. The proceedings of a suit do not permit the defendant to take a preliminary objection about the maintainability of the suit by oral objection or by putting in some kind of a non descript miscellaneous application. This is precisely what the State have done and remain reticent in their stand about it. It is this stand by the State that led the Sub Divisional Officer to pass an order of 7th August, 2015 closing their opportunity to file a written statement. This stage of closing opportunity did not come about in a matter of days, weeks or months; but at the end of almost seven years, after the suit was filed.;