POORAN SINGH Vs. ADDITIONAL COMMISSIONER

JUDGEMENT

(1.) This Special Appeal has been filed against an order of Chaturvedi J. dismissing a writ petition filed by the appellants under Article 226 of the Constitution.

(2.) The facts which had led to the writ petition were that Nitya Nand, the present respondent No. 2, was the tenant of the plots in dispute He had illegally sub-let the plots. The zamindar then filed a suit against him and his sub-tenants under Section 171 of the U. P. Tenancy Act for their ejectment from the plots. That suit was filed in 1942 and was decreed. After the zamindar got possession he let out the plots to Balwant Singh, present respondent No. 3. The appellants say that they are the sons of Balwant Singh and the zamindar let out the plots to them also along with Balwant Singh. The U. P. Tenancy (Amendment) Act (Act X of 1947) was then enacted and Nitya Nand applied under Section 27 of the Act for his reinstatement over the plots. The Sub-Divisional Officer passed an order in his favour and under the provisions of that section declared Balwant Singh respondent No. 3 to be a subtenant entitled to retain possession for three years. On the 16th of September, 1949 Balwant Singh applied to the Sub-Divisional Officer for a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act, 1949. He made the necessary deposit of ten times the rent and a certificate was actually issued to him along with his sons, the present appellants, on the 19th of September, 1949. When the three years period during which Balwant Singh had been declared entitled to retain possession according to Act X of 1947 expired, Nitya Nand brought a suit against him and his sons, the present appellants, under Section 202 of the Zamindari Abolition and Land Reforms Act praying for their ejectment. He treated them as asamis. The trial Court decreed the suit and an appeal was filed before the Additional Commissioner but that was also dismissed. A second appeal was then filed before the Board of Revenue, but was dismissed on the 18th of April. 1955. In spite of the decree for ejectment, Nitya Nand could not actually eject the appellants or their father Balwant Singh because a certificate under Section 6 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act had been issued in their favour. Before he could get actual possession it was necessary for Nitya Nand to have this certificate cancelled. Nitya Nand, therefore filed an application under Section 12 of the U. P. Agricultural Tenants (Acquisition of Privileges) Act. 1949 praying for the cancellation of the certificate. The ground put forward for the prayer of cancellation of the certificate was that the appellants and Balwant Singh had obtained the certificate fraudulently by concealing the facts that there was an order passed under Section 27 of the Act X of 1947 according to which they were only sub-tenants en- titled to retain possession for a limited period of three years. The trial Court accepted this contention and cancelled the certificate. The appellants and their father then went up in appeal to the Commissioner and this appeal was allowed ex parte on the 25th of April, 1955. The main ground which weighed with the Additional Commissioner who heard the appeal was that the appellants and their father were not parties to the proceedings under Section 27 of Act X of 1947 and the order passed under that section could not therefore affect their rights. The appeal haying been allowed ex parte Nitya Nand filed an application purporting to be one under Section 151 and Order 47, Rule 1, C. P. C., before the Additional Commissioner for setting aside the order passed in appeal. Notice was ordered to be issued and the application was heard on the 20th September 1955. The Additional Commissioner held that fairness demanded that the ex parte order should be set aside and the appeal should be heard on merits. He, therefore, set aside his previous ex parte order allowing the appeal of Balwant Singh and his sons and after hearing the appeal on merits on the same day he dismissed the appeal.

(3.) The appellants then filed the writ petition out of which the present appeal has arisen, and the main point which they urged before Chaturvedi J., who heard the petition was that the Additional Commissioner had no jurisdiction to review his previous order allowing the appeal ex parte. In support of this contention they relied on the case reported in Kalika prasad v. Additional Commssioner, Agra, 1955 All LJ 853: (AIR 1956 All 108) (A).