STATE Vs. RADHA KISHAN

JUDGEMENT

(1.) HIMANSHU Kumar Radha Krishan instituted a suit under Section 161 of U. P. Z. A. and L. R. Act in the Court of SDO Kirawali, Agra, for exchange of his holdings with the Gaon Sabha land. The applicant was absent on 22-8-1991 hence, on the same date the suit was dismissed in default by the SDO. Subsequently, the SDO by his order dated 24-8-1992 dismissed another application of Radha Krishna on the grounds that since the case had been dismissed on 22-8-1991 a second case was not maintainable on the same grounds. This order of the SDO dated 24-8-1992 was struck down by the learned Additional Commissioner in appeal by his order dated 15-3-1997 holding that the SDO did not call for any report from the Tehsildar and the case had earlier not been decided on merits, but was dismissed in default on 22-8-1991. Hence, this subsequent application of Radha Krishan should have been treated as restoration application but that too had been dismissed by the learned SDO on 24-8-1992 without assigning any reason as to why the restoration application could not be entertained against the earlier order dated 22-8-1991. Against this order, of the learned Additional Commissioner this revision has been filed, before the Board of Revenue on the grounds that after dismissal of first application under Section 161 of U. P. Z. A. Act for the same land in dispute second application by the plaintiffs was not maintainable, that because the Gaon Sabha did not pass any resolution for exchange of the Gaon Sabha land as such the trial Court had rightly rejected the suit.

(2.) I have heard the learned Counsel for the revisionist on 3-8-2006 and have perused the record of the case. This file pertaining to the order dated 24-8-1992 is not on record nor is there copy of the order dated 24-8-1992, but the basic facts of the case are clear from the record. The order of the SDO dated 22-8-1991 is clearly one whereby he has dismissed the case in default for non-appearance of the applicant and had not heard the case on merits. Subsequently, there appears to be another application on which the order dated 24-8-1992 has been passed rejecting the application on the ground that since the earlier suit had been dismissed on 22-8-1991 a second application for the same relief and on the same land in dispute is not maintainable. I fail to agree with this view of the learned SDO. Subsequent application could have been treated as restoration application for the earlier order dated 22-8-1991 and suitable orders passed thereon. Even if the learned SDO had not found the restoration application acceptable then he should have recorded a finding to that effect giving reasons. To this extent I agree with the finding of the learned Additional Commissioner in para 5 of his impugned order dated 15-3- 1997.