SITARAM Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard Sri Sharad Kumar Pandey, learned counsel for the petitioners, Sri Madhusudan Dikshit, learned counsel for respondent nos. 3/1 and 3/2 and Sri A.B. Srivastava, learned standing counsel for the state respondent.

(2.) Brief facts of the case are that petitioners filed a Suit No.26/1996 on 16/3/1996, under Sec. 229-B of the U.P. Z.A. & L.R. act for declaration in respect to plot no.601, area 0.241 decimal situated in village Pathanpura, Pergana and District Saharanpur. The aforementioned suit was dismissed vide judgment and decree dtd. 15/6/1999. Against the judgment and decree dtd. 15/6/1999 passed by the trial court, petitioners filed an Appeal No.117 of 1998-99 before the Commissioner, under Sec. 331 of the U.P.Z.A. & L.R. Act which was dismissed for non-prosecution on 30/5/2000. Against the order dtd. 30/5/2000, petitioners filed an application for recall and delay condonation on 4/7/2014. Petitioners filed a substitution application on 20/8/2014 in respect to deceased opposite parties in appeal. On 20/8/2014, Additional Commissioner allowed the substitution application dtd. 20/8/2014. Additional Commissioner vide an order dtd. 31/10/2014 allowed the recall application as well as delay condonation application on cost of Rs.250.00. One Shailesh Mishra has filed Writ C No. 66869/2014 before this Court against the order dtd. 31/10/2014 which was dismissed for non-prosecution vide order dtd. 8/1/2020. On 21/11/2014, father of respondent no.3/1 filed a recall application against the order dtd. 21/11/2014 which was allowed by Additional Commissioner vide order dtd. 15/12/2022, setting aside the order dtd. 31/10/2014 and restored the restoration matter for fresh decision. Hence, this writ petition against the order dtd. 15/12/2022, passed by respondent no.2/Additional Commissioner, Saharanpur Division, Saharanpur.

(3.) Counsel for the petitioners submitted that against the dismissal of the appeal for non-prosecution filed by the petitioners, restoration application and delay condonation application was allowed by the Additional Commissioner. It is further submitted that substitution application which was filed along with restoration matter, was allowed after notice to the proposed heirs. It is also submitted that order, allowing restoration application, was challenged by one Shailesh Mishra before this Court, by way of a writ petition, which was dismissed and the order, restoring the case, was maintained. It is also submitted that the application filed by the contesting respondent for restoring the case to its original number, has been allowed on the ground that no notice was issued to the heirs of deceased-party, as such, the restoration and delay condonation matter should be heard afresh. He further submitted that the impugned order is wholly illegal as by the earlier order only the appeal has been restored to its original number. It is further submitted that the impugned order be set aside and necessary direction be issued for disposal of the petitioners' appeal in accordance with law.