SAYED FAKARUDDIN SHAH Vs. HIRA

JUDGEMENT

(1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, against an order of the Additional Collector, Jaipur dated 17. 6. 1933 in a case relating to recovery of arrears of rent.

(2.) WE have heard the parties and have examined the record as well. Two preliminary points were raised as to the maintainability of this revision which we shall dispose of before examining the merits. The first is that the applicant could have filed a second appeal before the Commissioner under sec. 20 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, and as he had omitted to avail of this remedy this revision is incompetent. The other that the suit filed by the applicant was dismissed in default on 2. 8. 1952 and application for restoration of the same was presented on that very date which according to the opposite party was dismissed on 15. 12. 1953. WE feel no hesitation in observing that there is no substance in either of these contentions. As regards the first contention we would like to observe that it is true that the applicant could have filed a second appeal and generaily speaking re-visional jurisdiction should not be exercised where the applicant had deliberately failed to avail himself of another remedy which was open to him. But that is not an inflexible rule and in cases where there appears to be a grave illegality in the exercise of jurisdiction by the lower court interference should be made in the interest of justice and fair play. As regards the second contention the order of the trial court dated 15. 12. 1953 leaves no room to doubt that it amounted to an acceptance of the application for restoration inasmuch as it was observed therein that the suit had been remanded for further enquiry by the appellate court and hence it had become superfluous to proceed with the restoration application any further. Objection may be taken as regards the unhappy phraseology of the order but its intention is perfectly clear and is not capable of any ambiguity.