SHANTI DEVI Vs. RAJIV KUMAR TELANG

JUDGEMENT

(1.) In proceedings in the Court of the SDO, Sadar, Firozabad under Section 176 UPZA and LR Act the final order was passed on 18-3-1993. A restoration application was filed against this order, the Lekhpal's evidence was again recorded on 21-8-1993 and after hearing the parties concerned the earlier final order dated 18-3-1993 was upheld by the order dated 30-8-1993. Subsequently, the final decree was made on 6-9- 1993. After almost 9 years an application by Rajveer Kumar and others for restoration was moved on 20-9-2002 against the order dated 30-8-1993 which was rejected by the SDO on 17-4-2003 on the grounds that no application for condonation of delay under the Limitation Act had been filed amongst others. In appeal the learned Additional Commissioner (Judl.) by his order dated 24-5-2005 set aside the order of the SDO dated 17-4- 2003 and remanded the case back to the SDO for decision on the application on the light of observations made in his judgment. Against this order of the learned Additional Commissioner this revision has been filed before the Board of Revenue on the grounds that the application to recall the judgment after 9 years in the Court of SDO was barred by time, that the lower Appellate Court without setting aside any findings recorded by the trial Court has set aside the order of the learned trial Court, amongst others. 3. On 4-8-2006 the Counsel for both the parties appeared and sought adjournment. As previous adjournment beyond the mandatory limit of CPC had already been granted, the request for adjournment was rejected and parties were asked to file written argument which have been submitted and are kept on file. 3. I have heard the learned Counsel for both the parties and perused the relevant papers on file. The learned Additional Commissioner has based his judgment in appeal mainly on the ground that the appellants' restoration application will have limitation starting from the year 2002 when their mother died and not from the year of the judgment of 1993. As opposed to that the SDO has given a clear finding that the impugned orders dated 18- 3-1993 and 30-8-1993 cannot be said to be ex-parte in view of Rajinama and written statement filed on behalf of Yogesh Kumari. The learned SDO has concluded that the restoration application has two main grounds that the shares have been wrongly declared and that the signature of late Smt. Yogesh Kumari is forged and yet no prima facie evidence or case has been made out to support these grounds. 4. I am inclined to agree with the view taken by the learned SDO and I find the conclusion of learned Additional Commissioner to be erroneous. It is noteworthy that the findings recorded by the trial Court have neither been considered to be false nor reversed by the learned lower Appellate Court. The application for restoration was clearly barred by time and no prayer for condonation of delay was made. It is amazing that the original order and decree was passed in 1993 but the application for recall was filed only within a few days of the death of Smt. Yogesh Kumari in the year 2002. The rulings advanced by the opposite parties regarding the limitation, specifically the non- requirement for a formal application under Section 5 of the Limitation Act did not apply to the present case as the learned SDO has not been satisfied by the explanation of the delay given by the applicant, but on the contrary has found the circumstances of filing the application after wait of almost 9 years within a few days of the death of their mother to be suspicious. 5. In view of the above, the instant revision has force and is hereby allowed. The impugned order dated 24-5-2005 passed by the learned Additional Commissioner is set aside and that of the trial Court dated 17-4-2003 is upheld and sustained. Let the records be returned within a week and this Courts file be consigned to the record room. Revision allowed. .