P J LARTIUS Vs. BOARD OF REVENUE ALLAHABAD

JUDGEMENT

(1.) THIS writ petition has been directed against the judgment of Sri R. S. Verma, Member, Board of Revenue dated 27-10-1980 whereby revision no. 507 of 1977-78 and Reference No. 920 of 1977-78 Allahabad have been decided. The subject matter of the present writ petition is decision concerning revision no. 507 of 1977-78.

(2.) BRIEFLY facts giving rise to the present writ petition are that Beni Prasad filed a suit for declaration under section 229-B of the UP ZA and LR Act against the petitioner and others. The suit was decreed on 18-5-77. The defendant petitioner had filed an appeal against the judgment of the trial Court on 21-5-1977 without attaching the copy of the decree of the trial court with the memo of appeal. The decree of the trial court was prepared on 25-5-1977. It appears that on 8-8-1977 copy of the decree of the Trial court was applied and the same was filed before the first appellate court on 20th August, 1977. An application on 7-10-1977 was filed for treating the appeal against the decree and a prayer for condonation of delay was also made as is evident from Annexure '2' attached with the writ petition. The Additional Commissioner through his judgment dated 16-11-1977 dismissed the appeal as not maintainable and did not accept the contention that the word 'order' was written in the memo of appeal by clerical error. The revisional court in its judgment dated 27-10-1980 by placing reliance upon Rule 6-A of Order XX CPC confirmed the dismissal of appeal by the first appellate court. Aggrieved by the judgment of the revisional court the defendant petitioner has approached this Court under Article 226 of the Constitution.

(3.) THE second contention raised on behalf of the petitioner before me is that when the decree of the trial court was filed before the first appellate court it was incumbent upon the appellate court and the revisional court to consider the circumstances involved in the present case regarding condonation of delay and they should have treated the appeal filed by the petitioner well within time and they should have decided the claims of the parties on merits, but they have failed to exercise jurisdiction in them by law by dismissing the petitioner's appeal as not maintainable.