ABDUL RAHIM ALIAS LALLA Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The respondents 5 and 6 Suresh Chandra and Vinay Kumar sons of Ganga Charan are the plaintiffs in Original Suit No. 67 of 1967 instituted under Section 229-B of the Uttar Pradesh Zamindari Abolition & Land Reforms Act, 1950. Abdul Hamid, defendant in the said suit, was the brother of petitioner and the respondents 7, 8 (now deceased) and 9. A joint relief was claimed against the petitioner and Abdul Hamid who contested the matter by filing their written statements. Abdul Hamid died on 8.7.1976. An application for impleadment came to be filed for substituting the legal heirs of late Abdul Hamid. The application appears to have been delayed by almost 45 days. This application was rejected and an order came to be passed by the trial Court abating the suit on 18.10.1978.

(2.) The plaintiffs preferred an appeal before the learned Additional Commissioner, which was dismissed on 15.12.1987 and aggrieved by the same, a second appeal was filed before the Board of Revenue. The second appeal proceeded without the petitioner Abdul Rahim having been impleaded therein whereafter the respondent-plaintiffs appear to have moved an application under Order XLI Rule 20 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the C.P.C.') read with Section 5 of the Limitation Act, 1963 praying that due to a bona fide mistake, the petitioner could not be impleaded in the second appeal, even though, he was a party in the suit. An affidavit was filed in support of the said application for condoning the delay, if any, and the application was allowed on 24th of May, 1995 by the learned Member, Board of Revenue accepting the mistake of the counsel and allowing the impleadment application in the interest of justice after condoning the delay. A cost of Rs. 100/- was also imposed, After having allowed the said impleadment application, the Board of Revenue further went on to allow the second appeal on the ground that there was a very nominal delay of 45 days in moving of the said application before the trial Court and, therefore, the suit could not have abated. Accordingly, the order of abatement and the judgment of the first appellate Court were set aside with a direction to the trial Court to proceed and decide the suit on merits.

(3.) Sri A.K. Tiwari, learned counsel for the petitioners submits that the entire proceedings are without jurisdiction, inasmuch as, the second appeal was not maintainable before the Board of Revenue, inasmuch as, the order of abatement was a simple order under Order XXII Rule 4 (3) of the C.P.C. Once the suit had abated no appeal lay against such an order and as such even the second appeal was not maintainable. The second contention of Sri Tiwari is that the petitioner Abdul Rahim alias Lalla was never put to any notice about the application for impleadment moved under Order XLI Rule 20 of the C.P.C. and the petitioner having not been served with any notice, the order is in violation of principles of natural justice. Thirdly, it is submitted that the petitioner had never engaged Sri Ratan Singh as a counsel in the second appeal and he was a counsel only before the first appellate authority as such his engagement came to an end and Sri Ratan Singh never represented the petitioner in the second appeal.