The restoration proceedings do not abate under 5(2) of the U.P.C.H. Act, and the higher court can intervene if the trial court's order lacks reasoning and is arbitrary.

S.K. Singh, J.

By means of this writ petition, prayer is for quashing of the order dated 23.2.1995 (Annexure-5 to the writ petition) passed by the Respondent No.1/Board of Revenue, U.P., Allahabad.

2. Facts of the present case runs in a very narrow compass and thus, for the purpose of adjudication they can be summarised. A suit u/s 229B of the U.P.Z.A. and L.R. Act (hereinafter referred to as the Act), filed by the Respondent Nos. 3 and 4 was decreed on the basis of the compromise by judgment and decree passed by the trial court on 17.7.1980. An application for setting aside the decree referred above was filed by the Petitioner and her husband Brijlal on 5.12.1980, which was allowed by the trial court on 18.11.1992 and by setting aside the decree, the suit was restored. A recall application was filed by the Plaintiffs to the order dated 18.11.1992 which was rejected on 19.7.1993. Against the two orders of the trial court dated 19.7.1993 and 18.11.1992, a revision was filed by the Plaintiffs before the Additional Commissioner. On moving the stay application, the Additional Commissioner by order dated 12.8.1993 stayed the operation of the orders of the trial court and also further proceedings of the suit. As the order dated 12.8.1993 was time bound, by order dated 23.12.1993, it was extended until further orders. The Additional Commissioner by its judgment dated 3.2.1994, made a reference to the Respondent No. 1 with a recommendation that the revision be allowed and the orders of the trial court be set aside and the restoration application be reheard. It appears that during the pendency of the reference before the Respondent No. 1 present Petitioners moved an application on 16.4.1994, informing the Court that consolidation proceedings have intervened and a notification has taken place u/s 4 of the U.P.C.H. Act. A question answer was also filed to that effect. Respondent No. 1 after hearing the parties by its judgment dated 23.2.1995 accepted the reference and allowed the revision. The orders of the trial court dated 18.11.1992 and 19.7.1993, were set aside and the trial court was directed to decide the restoration application afresh after giving opportunity of hearing to both parties. The aforesaid exercise of the Board of Revenue dated 23.2.1995 is under challenge in this petition.

3. Counsel for the parties have been heard at length and pleadings as has been placed before this Court have been examined.

4. Learned Counsel for the Petitioner submits that the order of the Respondent No. 1 is faulty on two counts, i.e., (i) on intervention of the consolidation proceedings, of which information was given to the Respondent No. 1 by moving an application, the matter pending before him was liable to be abated u/s 5 of the U.P.C.H. Act. It is submitted that Section 5 (2) (a) of the U.P.C.H. Act makes it mandatory that any proceeding pending before any Court i.e., at the first instance or of appeal, reference or revision to be abated and, therefore, Respondent No. 1 in deciding the revision on the merits have committed an error; (ii) otherwise also the trial court allowed the restoration application filed by the Petitioner which being a discretionary order, was not liable to be interfered in the revision, as it has a limited scope. In support of the submission that after setting aside the decree as the suit revives, irrespective of pendency of the appeal or revision, it is to be abated u/s 5 of the U.P.C.H. Act reliance has been placed on the case of Manbirta and Ors. v. D.D.C., Ballia and Ors. 1988 RD 167.

5. In response to the aforesaid submission learned Counsel for the Respondents submits that as against the judgment of the trial court setting aside the decree a revision was filed, which was recommended to be allowed, the scope of reference/ revision pending before the Board of Revenue happened to be only to see that whether the trial court has rightly set aside the decree, or not and thus, the same cannot be permitted to be ab