JUDGMENT :

YOGENDRA KUMAR SRIVASTAVA, J.

1. Heard Sri Sudhanshu Pandey, learned counsel appearing along with Sri Madan Ji Pandey, learned counsel for the petitioners, Sri Ajit Kumar Singh, learned Additional Advocate General appearing along with Sri Abhishek Shukla and Sri Amit Manohar, learned Additional Chief Standing Counsel and Sri Amit Verma, learned Standing Counsel for the State respondents.

2. The present petition seeks to put forth a proposition that against an ex-parte order passed in proceedings under Section 24 of U.P. Revenue Code, 2006, the remedy of a statutory appeal being available, a recall application would not be maintainable at the behest of a nonparty.

3. The facts of the case, as reflected from the pleadings in the writ petition, indicate that an application filed by the petitioner under Section 24 of U.P. Revenue Code, 2006 [Code, 2006] registered as Case No. 994 of 2022, computerized case no. T202205200400994 (Tarkeshwar and others vs. Kishor and others) for demarcation of boundaries was allowed by means of an ex-parte order dated 22.07.2022.

4. Thereafter, the private respondent nos. 3 to 5, asserting themselves to be tenure holders of the adjoining plots and necessary parties in the proceedings under Section 24 of Code, 2006 preferred an application dated 13.09.2022 seeking recall of the ex-parte order dated 23.07.2022.

5. The said application was taken up by respondent no. 2, and after hearing the counsel for the parties on the stay application, an order was passed staying the effect of the earlier order dated 22.07.2022.

6. Counsel for the petitioner has sought to assail the order dated 12.01.2023 by raising the following contentions:

6.1 The order dated 22.07.2022 passed in proceedings under Section 24 of the Code, 2006, being appealable in terms of Sub-Section (4) thereof at the behest of ‘any person’ it was open to the private respondents to have availed the statutory remedy of appeal, and in view of the same, the recall application was not maintainable.

6.2 Section 209(h), which bars an appeal against an order passed ex-parte or by default, is subject to the condition contained under the proviso, in terms of which it is open to ‘any party aggrieved’ by the order passed ex-parte or by default, to move an application for setting aside the said order. The private respondents being ‘nonparties’ the order dated 22.02.2022 could neither be said to be an order passed ex-parte nor by default, and accordingly, the remedy of seeking recall of the order under the proviso to Section 209 would not be available to the said respondents.

6.3 The private respondents having not chosen to get themselves impleaded at the stage of pendency of proceedings under Section 24, it is not open to them to seek recall of the order subsequently.

7. Learned Additional Advocate General appearing for the State respondents has controverted the assertions made by the learned counsel for the petitioner by submitting as under:

7.1 The right to file a statutory appeal under Section 24(4) of Code, 2006, can in no manner be understood to take away the right of the private respondents to seek recall of an order passed ex-parte. This would be more so in a case where as per the provisions contained under Rule 22 of the U.P. Revenue Code Rules, 2016 [Rules 2016] the private respondents being tenure holders of contiguous plots, would be necessary parties in the proceedings.

7.2 Rule 22 mandates that the application filed under Section 24(1) Code, 2006, is to specify the details of the contiguous plots, and also, the concerned tenure holders are to be made parties in the case having a right to be heard; accordingly, the private respondents being necessary parties, and the order having been passed ex-parte without impleading them, it would be open to them to seek recall of the order.

7.3 The expression ‘any party’ aggrieved under the proviso of Rule 209, which gives the remedy of filing of recall application against the order passed ex-parte, would includ