BEHARI Vs. TULLU

JUDGEMENT

(1.) THIS is a revision petition under Section 333 of the UPZA and LR Act preferred against the judgment and order dated 10-1-1997 passed by the learned Additional Commis­sioner, Moradabad Division, Moradabad arising out of a judgment and order dated 28-6-1996, passed by the learned trial Court in a suit, instituted under Section 176/177 of the UPZA and LR Act.

(2.) BRIEFLY stated, the facts of the case are that the plaintiff- respondent, Tullu instituted a suit under Section 176/177 of the UPZA and LR Act, with the prayer that his 1/2 share in the land in suit, as detailed at the foot of the plaint, be parti­tioned and quarras be prepared as per his possession. The learned trial Court after completing the requisite trial through its order dated 5-1-1996, determined the shares of the parties in the land in suit and has also ordered for preparation of the preliminary decree. By means of its order dated 28-6-1996, the leaned trial Court has rejected the applications dated 5-1-1996 and 19-1-1996 moved on behalf, of the defendant. Aggrieved by this order an ap­peal was preferred. The learned lower ap­pellate Court has dismissed the aforesaid appeal on 10-1-1997. Hence this revision petition.

(3.) I have closely and amined the contentions raised by the learned Counsel for the carefully ex-parties and relevant records on file. From a bare perusal of the records, it is manifestly clear that the order-sheet of the learned trial Court reveals that on 27-12-1995, the plaintiff was not present before the trial Court while the learned Counsel for the defendant was present. But on this very date, the file was ordered to be put up for preliminary order on 5-1-1996. Surpris­ingly enough, there is no signature of the presiding officer, below the aforesaid order-sheet. It is also very unfortunate that barring a few, mostly all the order-sheets of this very file are unsigned by the presiding officer, concerned. On 5-1-1996 the learned trial Court has passed an order for preparation of the preliminary decree after the determination of the shares of the parties in the land in suit and as such from a bare perusal of the record, it is crystal clear that the aforesaid order dated 5-1-1996 has been passed without affording an oppor­tunity of hearing to the plaintiff- appel­lant. In these circumstances, this order dated 5-1-1996 is proved to be exparte one. A bare perusal of the record also reveals that the applications dated 5-1-1996 and 19-1-1996 have not been disposed of as per the procedure prescribed by law. The learned trial Court should have examined the relevant and material records on file and passed an appropriate order after af­fording due and reasonable opportunity of hearing to the parties concerned. But it has utterly failed to do so. The learned lower appellate Court has also not examined these facts and circumstances of the in­stant case and has passed a totally cryptic-cursory and slip-shod order dated 10-1-1997 which is not well-found and war­ranted in law and as such the same cannot be maintained. In order to promote the ends of substantive natural justice and to facilitate its course; it would be quite just and proper to set aside the aforesaid im­pugned orders, passed by the learned Courts below and to remand this case to the learned trial Court for decision afresh on merits in consonance with the provisions of law after affording due and reasonable opportunity of hearing and ad­ducing the evidence, in support of their claims to the parties concerned.