SOBARAN SINGH Vs. BOARD OF REVENUE AND OTHERS

JUDGEMENT

(1.) A suit under Sec. 229-B of the U.P.Z.A. and L.R. Act was filed by Smt. Gonju against the petitioners and the Gaon Sabha. The suit was dismissed. Smt. Gonju filed an appeal which was allowed by the Additional Commissioner, Jhansi Division, Jhansi vide order dated 8.8.1983. The petitioners filed a second appeal in the Board of Revenue. In the second appeal they arrayed Smt. Gonju and the Gaon Sabha as respondents. The fact about the date of death of Gonju was disputed. The Board of Revenue remitted the issue for determination by the Trial Court and it was found that Smt. Gonju died after the decision of the Additional Commissioner in appeal but before the second appeal was filed before the Board of Revenue. It is not in dispute that the petitioners had applied for amendment of the memo of appeal for arraying the two heirs of the deceased Smt. Gonju as respondents in the appeal. While the application was pending the second appeal was dismissed in default on 18.4.1990. An application for restoration was filed by the petitioners on 30.5.1991. In the restoration application the name of Smt. Gonju deceased was shown as' the opposite party. However, the two heirs of the deceased Smt. Gonju, namely, Smt. Siyaju and Kamlesh Kumar had filed their vakalatnama and they were heard. No counter affidavit was filed by them. The Board of Revenue by its impugned order dated 29.10.1992 dismissed the restoration application,. The finding recorded by the Board of Revenue is that the second appeal was filed against a dead person and was therefore a nullity and secondly the delay in filing restoration application was not explained.

(2.) I have heard Sri P.K. Misra holding brief of Sri S.S. Gupta Counsel for the petitioners and Sri K.N. Saxena Counsel for the respondents.

(3.) The submission of the petitioners Counsel is that the restoration was sought on the ground that no notice of the date fixed namely 18.4.1990 was given to the petitioners on which date the appeal was dismissed in default and as such the restoration ought to have been allowed. Sri K.N. Saxena Counsel for the respondents on the other hand contends that the second appeal itself was a nullity having been filed against a dead person Smt. Gonju and even the restoration application suffered from the same defect as Gonju was arrayed as opposite party and not the heirs. This fact however is not disputed that the heirs of Smt. Gonju, namely Siyajo and Kamlesh Kumar were represented by Counsel and they were heard. Sri K.N. Saxena Counsel for the respondents placed reliance upon the decision of the Apex Court in Shankar Lal and others Vs. Shakil Ahmad and others, 2001 (Suppl.) RD 4 (SC). On the strength of this decision, it is submitted that the restoration application was a nullity. The case cited in my opinion is distinguishable. In the decided case there were two defendants. Defendant No. 1 had contested the suit whereas defendant No. 2 had died and the plaintiffs did not apply for substitution of the heirs of defendant No. 2. It was held that the decree against the defendant No. 2 was a nullity. In that case the estate of defendant No. 2 was not represented at all and the heirs were not heard so the decree against the defendant No. 2 was a nullity. The present case is different. In this case the two heirs of Smt. Gonju had appeared through Counsel and had opposed the restoration application. An application for amending the memorandum of second appeal and impleading them as respondents in the appeal was pending. If the order dismissing the appeal in default was passed on a date of which the appellant had no notice, he is entitled to have it restored. As regards the second appeal itself having been filed against a dead person and being incompetent for that reason the application for amendment is still pending in the second appeal and the question whether the amendment for impleading the heirs can be allowed has yet to be decided by the Board. The only point to be considered in the present case is whether the order dismissing the restoration application was correct. The view taken by the Board of Revenue is that the delay of more than 1 month has not been explained. The restoration application alongwith the affidavit filed by the petitioners in the Board of Revenue is Annexure 5 to the writ petition. In the affidavit it is stated that Sri R.N. Upadhya who was representing the appellant did not receive any notice about the date on which the appeal was dismissed in default and it was only when the appellant heard a rumour in his village that the appeal had been dismissed that he came to Allahabad and engaged Sri D.N. Gupta, Advocate on 29.4.1991 and when the record was inspected on 1.5.1991 the correct facts were revealed. The Board of Revenue while dismissing the restoration application has not given any finding as to whether notice of the date fixed in the second appeal on which date the appeal was dismissed in default was given to the appellant or his Counsel. If the averment made in the restoration application that there was no notice, of the date is correct the limitation for filing the restoration application shall run from the date of knowledge. According to what has been stated in the affidavit the fact about the dismissal of the appeal in default only came to light when the record was inspected on 1.5.1991. However, it is for the Board of Revenue to consider and give a finding on these points. The view taken by the Board of Revenue that there was one month's delay in filing the restoration application without a finding whether the appellant had notice of the date does not appear to be correct Sri K.N. Saxena Counsel for the respondents submitted that the dates in this case were fixed continuously and limitation shall run from the date of the order. It is for the Board of Revenue to consider this contention also if advanced before it.