SHAKUNTALA DEVI Vs. BOARD OF REVENUE AND OTHERS

JUDGEMENT

(1.) This writ petition under Art. 226 of the Constitution of India is directed against the Board of Revenue dated 30.12.1974.

(2.) The facts of the case in brief are that a suit under Sec. 229-B of the U.P. Zamindari Abolition and Land Reforms Act was filed on behalf of the petitioner for declaration of right on the land in dispute. The suit was decreed ex-parte by orders of the trial court dated 3.12.1968. An application under Order 9 Rule 13 of the Civil Procedure Code (hereinafter referred to as CPC) for setting aside the ex-parte decree filed on behalf of the defendant respondent no. 4 on 9.12.1968. This application was opposed by the plaintiff on the ground that it was not filed on behalf of the defendant as it was not signed by him but was signed by Bhola as Pairokar and Sri Bhrigunath as counsel. As a matter of fact, neither Bhola was Pairokar nor Sri Bhrigunath was his counsel. Another application was filed by the defendant on the ground that by mistake, the Vakalatnama executed on his behalf in favour of Sri Bhrigunath, counsel could not be signed and he may be allowed to sign the same. The trial Court disallowed this application. Thereafter the defendant moved another application on 18.8.1969 to the effect that Sri Bhrigunath was his counsel and the restoration application was signed by him at his instance. It was further prayed that he may be allowed to sign the application. This application was again opposed by the petitioner. The trial court, by order dated 4.2.1972 rejected this application and also dismissed the restoration application. The defendant preferred an appeal against the order of the trial Court which was allowed with the finding that the application was maintainable and the case was remanded for disposal of the restoration application. The petitioner, feeling aggrieved by the order of the Addl. Commissioner preferred a a revision. But in May, 1974 an application was moved on her behalf for converting the revision into second appeal. This was opposed by the defendants. The Board of Revenue by his order dated 30.12.1974 rejected the application and refused to convert the revision into a second appeal. The petitioner has challenged the aforesaid orders before this court in the present writ petition.

(3.) It has been contended by the learned counsel for the petitioner that the Board of Revenue has committed an error in rejecting her (petitioner's) application on the ground that the Second appeal was maintainable and if it is allowed to be converted into second appeal, it will be time barred as the application for conversion was moved in May 1974. According to the learned counsel for the petitioner it was the finding of the Board of Revenue that the Second Appeal was maintainable, therefore, it should have been treated as second appeal as no revision was maintainable. The learned counsel contended that this view of the Board of Revenue that if the Second appeal is allowed then it will be time barred, is also wrong. The learned counsel for the petitioner further contended that the order passed by the Addl. Commissioner was not revisable. Therefore, even though it was filed as a revision it should have been converted into a second appeal. He made reference to Sec. 115 of the C.P.C. to show that revision lies against the order where no appeal lies thereto. No appeal lies in this Sec. means either first appeal before the Distt. Judge or the Second appeal before the High Court. In this connection he placed reliance on Radha Mohan Dutt Silk Merchant Vs. Abbas Ali Biswas and others, A.I.R. 1931 Allahabad 294. and Major S.S. Khanna Vs. Sri F.G. Dillon, A.I.R. 1964 S.C. 497 . According to the learned counsel for the petitioner in appeal larger remedy is available as held in Smt. Vidya Devi Vs. Smt. Devi Das, A.I.R. 1977 S.C. 397 . Therefore, where no appeal lies either before the District Judge or before the High Court, that order is revisable by the High Court. In support of his contention that second appeal was maintainable against the order of remand he placed reliance on Mahendra Kumar Vs. Board of Revenue and others, 1972 A.W.R. 323 wherein it has been held that the order of remand is the final order as nothing remains pending before the Addl. Commissioner. Therefore, second appeal lies against the order of remand before the Board of Revenue. According to learned counsel, the view of the Board of Revenue that in case the revision filed on 10.1.73 be converted into second appeal application for it made in May 1974, will be time barred, is wrong. In fact it will be deemed to have been filed on the date the revision itself was filed and not on the date when the application for conversion was made.