SHIV HARSH Vs. ADDL COMMISSIONER FIRST ALLAHABAD DIVISION

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the learned standing counsel. The grievance raised in the present writ petition is that Commissioner on an application filed by the respondent has remanded the matter without setting aside the order passed by the trial court. Admittedly the original order passed by the Sub Divisional Magistrate concerned is an ex-parte order without affording an opportunity to the respondent. On an application made by the respondent the same was dismissed vide its order dated 3.10.2008. The respondent aggrieved by the aforesaid order filed a revision. The Revisional Court after recording a finding that in the interest of justice it was appropriate that opportunity should have been given to the respondent concerned to put his case on merit as well as on the ground of limitation but the application filed by the respondent has been dismissed, therefore, in such a situation in equity as well as in the interest of parties, it will be appropriate that the Sub Divisional Magistrate concerned should decide the dispute between the parties after affording full opportunity to the relevant persons, in such a situation, the matter has been remanded. Legally the contention of the petitioner to this effect may be correct but this can not be a ground for setting aside the said order that as the order passed by the trial court has not been set aside, therefore, the appellate are Revisional authority has got no jurisdiction to remand the matter. In my opinion, this can be treated to be an irregularity and it can not be said to be illegality. In view of the aforesaid fact I find no merit in the writ petition. It is hereby dismissed. No order is passed as to costs. It is however made clear that the Sub Divisional Magistrate concerned will decide the matter after affording full opportunity to the parties on the basis of remand order passed by the Commissioner within three months from the date of production of a certified copy of this order before him.