JAGNNATH Vs. BOARD OF REVENUE

JUDGEMENT

(1.) The petitioners application for cancellation of the patta of respondent No. 5 was allowed by the Collector. The order was challenged by respondent No. 5 in revision and was set aside by the Additional Commissioner. The petitioner challenged the order of the Additional Commissioner in revision before the Board of Revenue. The Board of Revenue dismissed the revision. Aggrieved the petitioner has filed this writ petition. During the pendency of the writ petition, respondent No. 5 died on 10-11-2004 but no application for bringing his heirs on record was filed by the petitioner and a order was passed on 17-2-2006 that the writ petition has abated as respondent No. 5 was the sole contesting party. The petitioner has filed this application for recall of the order of abatement dated 17-2-2006. The application has been opposed by Sri S. K. Lal, counsel for respondent.

(2.) It was submitted by Sri S. K. Lal the petitioner's counsel that under Chapter VIII, Rule 38-A of the Rules of the Court provisions of Rules 1 to 6 and 9 of Order XXII of the CPC shall, so far as may be and with necessary modifications and adaptations, apply to special appeals and writ petitions under Art. 226. His submits that once the order of abatement has been passed, an application for setting aside that order is not maintainable. He placed reliance upon two decisions - one AIR 1988 Patna 147, Pradip Narain Singh v. Brij Nandan Prasad and second AIR 1950 Allahabad 57. Brij Jeevan Lal v. Shiam Lal. In the Patna case it was held that where an order of abatement has been passed the exemption from the necessity of substituting the legal representatives of the defendant under sub-rule (4) of Order 22, CPC cannot be claimed. In Brij Jeevan Lal's case it has been held that the order dismissing the suit as abated after an adjudication that the right to sue does nqt survive is a decree and as such is subject to appeal and no application to set aside abatement lies. He has also relied upon AIR 1993 AP 156, Morasa Anjaiah v. Kondragunte Venkateswarju (died) in which it has been held that the Court has no inherent power to set aside abatement. In my opinion the decisions cited by the counsel for respondent have no application on the facts of the present case. No doubt by virtue of Chapter VIII, Rule 38-A of the Rules of the Court certain provisions of Order 22 have been made applicable to writ petitions but the application has not been made in absolute terms and is subject to necessary modification and adaptation. The order dismissing a writ petition whether as abated or otherwise is not a decree. The present writ petition has been filed against the order of the Additional Commissioner and the Board of Revenue in revision in proceedings for cancellation of a patta and no special appeal lies against such an order passed in the writ petition. This position is not disputed by counsel for both the sides. The order passed in writ petition is thus not subject to appeal. For these reasons the decision in Brij Jeevan Lai's case (AIR 1952 All 57) is not applicable. The Patna case is also based on different facts. So far as the case of AIR 1993 AP 156 is concerned that too is distinguishable inasmuch as the question of invoking inherent power under Section 151 of CPC does not arise. Rule 9 of Order 22, CPC has been made applicable to writ petitions by Rule 38-A of Chapter VIII and therefore the application for setting aside abatement would lie under that provision.

(3.) Sri Manish Goyal counsel for the petitioner relied upon a decision of the Apex Court in Puran Singh v. State of Punjab (AIR 1996 SC 1092) in which it has been held that the provisions of Code of Civil Procedure are not applicable to a writ petition. As we have noticed that it is not in absolute terms that the provisions of Order XXII have been made applicable by the Rules of the Court to writ proceedings. It is to be noted that in some of the earlier cases it was held that an application for setting aside an order of abatement was maintainable if a formal order of abatement was passed. This Court in Mst. Gujrati v. Sital Misir (AIR 1922 All 209) went to the extent of holding that there can be no automatic abatement and a formal order of dismissal of the suit as having abated is accessary before as application for setting is aside can be entertained. This view has since been overruled by a Full Bench in Churva v. Baneshwar (AIR 1926 All 217) and a formal order is not necessary but that docs not mean that no application would lie to set aside an abatement if a formal order of abatement has been passed.