NIRANJAN LAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Present petition has been instituted assailing of the order dated 7.3.2005 passed by Division Bench of Board of Revenue whereby Application No. 30 of 1996-97 was allowed and order dated 24.2.1997 of the learned Single Member of Board of Revenue passed in Revision No. 18 of 1989-90 was set aside and the matter was remitted to the trial court for decision afresh of substitution application after affording opportunity of hearing to both the parties.

(2.) I am constrained to say that this case presents a dismal picture of how ingenuity is exercised to procrastinate the matter for years together by recourse to unmerited technicalities. The instant case furnishes obtrusive instance how hapless widow has been harassed for years together who ultimately left for heavenly abode with forlorn hope of seeing fruits of her labour during her life time. The litigation in the instant case erupted with the institution of suit under Section 229/209 of the U.P.Z.A. & L.R. Act for declaration by Kanha, plaintiff. The ups and downs of the case ray be recapitulated. The suit came to be decreed exparte on 31st Jan 1978 against which Smt. Lilawati arrayed as defendant, preferred an application on 2.6.1978 under Order IX, Rule 13 C.P.C. on the allegations that she was never served any notice and that the exparte decree was liable to be set aside. The said application came to be dismissed for default on 20.6.1979. Another application was filed in the course of the day and upon this application, the order was recalled the same day i.e. 20.6.1979. The plaintiff dragged the order in revision before the Additional Commissioner who made a reference to the Board of Revenue recommending that the revision be allowed and trial court be directed to decide the restoration application in accordance with law. The reference made to the Board of Revenue was accepted on 28.1.1987. During the pendency of Reference before the Board of Revenue, plaintiff Kanha breathed his last leaving behind his only son Niranjan Lal, petitioner of the present petition. On 6.6.1989, the petitioner moved an application stating that as no substitution application was moved within three months, the restoration application of Smt. Lilawati be dismissed as having abated. The application did not find favour and was rejected. Revision preferred against the said order was also dismissed on 18.10.1989. Subsequently, learned Single Member of the Board of Revenue who was seized of the matter, set aside the order passed by the Additional Commissioner vide order dated 24.2.1997 and ordered the suit as having abated for want of substitution. The matter ultimately came to be heard by a Division Bench of the Board of Revenue and the order passed by the Division Bench has been impugned in the instant petition.

(3.) Learned counsel for the petitioner premised his submission on the ground that the order passed in review application is vitiated as the Division Bench of the Board of Revenue lacked jurisdiction. The learned counsel further canvassed that though the order passed by the learned Single Member rejecting the matter has having abated, was recalled but there is no indicium on record to show whether the revision was disposed of or subsisted. The next submission advanced by the learned counsel has been phrased in the manner that substitution application was not made within the prescribed period of 90 days and hence restoration application was rightly dismissed as having abated by the Board of Revenue but on review the order was wrongly recalled and impugned order is therefore liable to be quashed.