PAHALWAN/SURESH Vs. STATE

JUDGEMENT

(1.) THERE are two connected review petitions under Order XLVII Rule 1 read with Section 151 CPC preferred against the judgment and order dated 21-7-2004, passed by this Court in revision petition Nos. 38 & 37 of 1998-99/Lalitpur, remanding the cases to the learned Collector, Lalitpur for decision afresh, on merits, according to law, in the light of the observations made therein.

(2.) I have heard the learned Counsel for the petitioners as well as the learned DGC(R) and have also perused the record on file. The main thrust of the arguments of the learned Counsel for the petitioner are that the arguments raised by him during the course of hearing of the revision petitions have not been considered nor has any finding in respect thereof been recorded by this Court; secondly, that the very initiation of the proceedings under Section 198(4) of the UPZA and LR Act (hereinafter referred to as the Act) ab-initio was challenged but the same has also not been considered nor has any finding in this connection been recorded by this Court and thirdly, that a remand of the cases should also not be made to enable the party concerned to fill up the lacuna and therefore, an error apparent on the face of the record has crept in the impugned order under Order XLVII Rule 1 CPC read with Section 151 CPC and as such, the same may be recalled and the revision petitioners may be decided afresh on merits, according to law in the light of the arguments raised by him during the course of hearing of the revision petitions. In support, reliance has been placed on the case laws, reported in 1990 RD 267; 1997 AWC 649; 2004 RD 357; 1992 RD 51(H). The learned DGC(R), in reply, urged that since the scope of review is rather very limited, in the facts and circumstances of the instant case as well as the evidence on record, this Court was perfectly justified in remanding the cases to the learned Collector for decision afresh, on merits, according to law, in the light of the observations made therein and rendering the impugned order and as such no case of review has been made out and therefore, these review petitions, having no force, very richly deserves dismissal outright.

(3.) I have also heard the learned Counsel for the revisionist as well as the learned DGC(R) on merits of the cases. The main thrust of the arguments of the learned Counsel for the revisionist are that suo-moto action, taken by the learned trial Court was ab-initio not justified in the facts and circumstances of the instant case, in view of the case law reported in 1986 RD 137, that the opposite party has rather failed to prove the minority of the lessees and the burden of proving the same otherwise has wrongly been shifted to the revisionists, since this is rather a negative fact and especially when this allegation did not find place in the show-cause notice, issued to the revisionist and therefore, since no new case could be made out, the leases, in question, could also not be cancelled on this ground as well; that for the above reasons, the proceedings, in question, are not at all maintainable in law and the cancellation of the leases in question was not at all justified in the eyes of law and therefore, these revision petitions very richly deserve to be allowed in toto. In support, reliance has been placed on the case laws, reported in 1986 RD 137; 1990 RD 267; 1997 AWC 649; AIR 1977 SC 890; AIR 1930 PC 957. The learned DGC(R), in reply, urged that since in the facts and circumstances of the instant case as well as the evidence on record, the learned Courts below were perfectly justified in cancelling the leases in question, these revision petitions very richly deserve dismissal outright.