NAZIRA BEGUM Vs. SYED ALI ZAHEER

JUDGEMENT

(1.) THIS is an applica tion for abatement of the appeal and the suit which has given rise to the appeal. The material facts for the purposes of this appli cation may be briefly stated. The plaintiff filed a suit for cancellation of a sale-deed dated 15th June, 1964, executed by him and Ali Kabir in favour of the defendant in res pect of the property detailed at the foot of the plaint so far as it pertained to his share therein. The Trial Court dismissed the suit, but in appeal, it was decreed and the sale-deed in question was cancelled to the extent of the plaintiff's share in the property, in dis pute. The decision of the appellate court below was given on 18th May, 1972. Against that decision, the defendant filed a second appeal in this Court on 11th July 1972 However, before the second appeal was filed a notification under Section 4 of the U. P. Consolidation of Holdings Act was published on 21st May. 1972, in respect of the village where the land in dispute is situated. The appellant, therefore, filed an application that the suit and the appeal be ordered to have abated under Section 5 of the said Act. The plaintiff-respondent in his counter-affi davit has admitted the publication of a noti fication under Section 4 of the said Act, under which the village where the land in question is situated, has been brought under the consolidation operations. It was, how ever, Urged on behalf of the respondent that as the said notification had been issued be fore the filing of the second appeal, the Court had no jurisdiction to entertain the appeal and the appeal would, therefore, not be deemed to be pending. Hence no order for abatement can be passed under sub-sec tion (2) of Section 5 of the said Act inas much as an order for abatement can be passed only when a suit, appeal or revision is pending in a competent court. This con tention is sought to be based on the provi sions of Sections 49 and 5 of the said Act.

(2.) TO appreciate the argument, I may begin by quoting Section 49 of the said Act. It is as follows:-

(3.) THE meaning of the word 'enter tain was examined by this Court in a num ber of cases. See Bawan Ram v. Kunj Behari Lal, AIR 1962 All 42; DhoonTChand Jain v. Chaman Lal Gupta, AIR 1962 All 543; Kundan Lal v. Jagan Nath Sharma. AIR 1962 All 547; Haji Rahim Bux and Sons v. Samiullah and Sons, AIR 1963 All 320 and Smt. Jaggi v. Ram Autar, 1965 All LJ 1135. In the case of Dhoom Chand Jain (supra) while dealing with the provisions of Order 21, Rule 90, Civil Procedure Code it Was ob served:-