RAJ KUMARI Vs. DURYODHAN

JUDGEMENT

(1.) S. P. Pandey, Member. This is a second appeal under Section 331 of UPZA & LR Act (hereinafter referred to as the Act) preferred against the judgment and order dated 14-6-1995, passed by the learned Additional Commissioner, Varanasi Division, Varanasi, in a restoration application for recalling the judgment and order dated 1-3-1986 rendered in Appeal No. 2/30 of 1984.

(2.) BRIEFLY stated, the facts giving rise to the instant second appeal are that in the suit filed by the plaintiff, Smt. Raj Kumari under Section 176 of the Act for division of holding, the learned trial Court, after completing the requisite trial, held her share as 1/2 in the land in dispute and passed the preliminary decree accordingly. In appeal preferred by the defendant, Duryodhan, the learned Additional Commissioner allowed the same ex parte, setting aside the decree, passed by the learned trial Court and remanding the suit to it for decision afresh on the point of remarriage of the plaintiff with Vishwanath, after affording an opportunity of being heard and adducing evidence to the parties, concerned, vide his order dated 1-3-1986. On 16-3-1993, Smt. Raj Kumari moved a restoration application before the learned Additional Commissioner for recalling the order dated 1-3-1986, who vide his order dated 14-6-1995, dismissed the same and therefore, it is against this order that the instant second appeal has been preferred by her before the Board.

(3.) HAVING given my thoughtful consideration to the matter in question, I am of the considered opinion that whatever reality would have been, the fact remains that no harm of prejudice has been caused to any party by the decision of the learned Additional Commissioner, as the suit has been remanded to the learned trial Court on the point of remarriage of the plaintiff and the parties, concerned shall certainly get ample opportunity to have their say in support of their claim and to adduce evidence, if they so desire and therefore, I entirely agree with the views, expressed by the learned Additional Commissioner because the point of remarriage is rather very vital to the decision of this case in view of the fact that if it is so, the share of the plaintiff would devolve upon her three unmarried daughters. The learned Additional Commissioner has dealt with the matter, in question in a rather very analytical and logical manner in correct perspective of law and the restoration application has very rightly been dismissed, as the applicant has miserably failed to explain satisfactorily the aforesaid delay in filing the same. The suit has also been very correctly remanded to the learned trial Court, as the point of remarriage has bearing upon the decision of the same. No illegality or material irregularity has either been committed by the learned Additional Commissioner in rejecting the restoration application and remanding the suit to the learned trial Court and therefore, in the facts and circumstances of the instant case, he was perfectly justified in rendering the impugned orders with which no interference is called for by this Court at this second appellate stage and as such, this second appeal having no force, very richly deserves dismissal outright.