VIJAI SINGH Vs. VTH ADDL DISTRICT JUDGE

JUDGEMENT

(1.) Heard petitioner's counsel and Shri Pankaj Mittal. counsel appearing for respondent No. 5, the landlord.

(2.) By means of this writ petition, the tenant-petitioner has challenged the order of the lower revisional court, whereby his application for restoration of revision has been rejected. It is not in dispute that during the pendency of application moved by the landlord under Section 21 (1) for of the U. P. Act No. XIII of 1972. the landlord died and in his place, Surendra Singh moved an application for substitution alleging himself to be the adopted son of the deceased. One more person Vijai Singh, the present petitioner also moved an application for substitution alleging himself to be the legal heirs of the deceased-landlord Jagat Singh. The prescribed authority allowed the application of Surendra Singh and rejected the application moved by the petitioner Vijai Singh. Aggrieved by that order, the petitioner filed Revision No. 150 of 1995 before the District Judge, Ghaziabad, and the same was fixed for hearing on 19.2.1996 before the respondent No. 1. As on the said date, neither the petitioner nor his counsel appeared, and the respondent No. 1 proceeded to decide the said revision on merits by the judgment dated 26.2.1996. Thereafter an application for restoration was moved on behalf of the petitioner stating therein that he had fallen ill and was down with fever, so neither he could be present in Court on the date fixed nor he could inform his counsel. The said application has been rejected by the impugned order.

(3.) Learned counsel for the petitioner submitted that since the provisions relating to appeal under the Code of Civil Procedure have been made applicable to revisions also, the lower revisional court should have decided the revision on merits in the absence of the petitioner or his counsel and at best revision could have been dismissed in default. Thus, the petitioner has been highly prejudiced on account of decision on merits in his absence. On the other hand, learned counsel for the respondent Shri Pankaj Mittal argued that in the present writ petition, the petitioner has simply challenged the order rejecting the restoration application and the Court below has recorded a finding of fact against the petitioner that he has no sufficient cause for his absence on the date fixed for hearing in the revision. Shri Mittal further argued that in any view of the matter, no fruitful purpose will be achieved by sending the case back to the Court below as revision filed by the petitioner was itself not maintainable in law. He submitted that the prescribed authority appointed under the Act to deal with an application under Section 21 (1) (a) is not a court of civil jurisdiction but is only a persona designate. Reliance has been placed in support of his submission on the decision in Smt. Surjeet Kaur v. IVth Addl. District Judge. Bulandshahr and others, 1983 ARC (1) 202 ; Smt. Shakuntala Devi v. IVth Addl. District Judge. Meerut and others, 1981 ARC 262 and Kalawati Raja v. IInd Addl. Civil Judge, Kanpur and others, 1983 ACC 740.