JUDGMENT

Chandra Kumar Rai, J.

Heard Sri R.C. Singh, learned Senior Counsel assisted by Sri R.S. Nagvanshi, learned counsel for petitioner, Sri Anoop Trivedi, learned Senior Counsel assisted by Sri Anurag Tripathi, learned counsel for respondent no.5, Sri Abhishek Shukla, learned Additional Chief Standing Counsel for state-respondents and Sri Sudhir Bharti, learned counsel for Gaon Sabha.

2. Brief facts of the case are that one Naipal and Raghunath sons of Dev Narayan were bhumidhar in possession of old plot nos. 43/1.93, 44/1.64, 54/.50, 55/.48, and 56/.48 New No. 514, 515, 529. The recorded tenure holders as mentioned above transferred the aforesaid plots to the Junior High School Tarya Sujan, District Deoria (now district Kushinagar) vide registered sale deed dated 09-08-1965.

3. On the basis of the aforementioned sale deed dated 09-08-1965 name of the college was accordingly recorded in the revenue records. The village in question where the aforementioned plots were situated was brought under consolidation operation by means of notification issued under Section 4 of U.P. Consolidation of Holdings Act (hereinafter referred as U.P. C.H. Act). Basic year entry according to petitioner was in the name of petitioner and no objection under Section -9A (2) of U.P. C.H. Act was filed by anybody but according to respondent no.5 her husband was recorded in the basic year of consolidation but petitioner got his name recorded fraudulently subsequent to C.H. form 23 stage without any basis..

4. According to petitioner the name of the contesting respondent no.5 or her predecessor-in-interest was not recorded in the revenue records at any point of time over the plots in dispute.

5. Respondent no.5 filed a suit under Section 144 of the U.P. Revenue Code, 2006 for declaration in respect of the plots in dispute which was numbered as Case No. T201905440303976, stating that plots in dispute was self-acquired property of her husband (Raj Kishore) and after the death of her husband in the year 2011, she came in possession of the plots in dispute.

6. The Trial Court vide ex-parte judgment dated 26-07-2019 decreed the plaintiff's suit under Section 144 of the U.P. Revenue Code 2006.

7. Petitioner filed an application under Order IX Rule 13 of the CIVIL PROCEDURE CODE (hereinafter referred as CPC) against the ex-parte judgment and decree dated 26-07-2019, which was allowed vide order dated 16-12-2019 and the suit was again restored to its original number for decision afresh.

8. Against the order dated 16-12-2019, respondent no.5 filed an appeal before the Appellate Court, which was dismissed vide judgment and dated 05-04-2021.

9. Petitioner filed an application dated 01-07-2022 before the Trial Court to dismiss the suit as not maintainable as no proceeding has been taken during consolidation operation as such the suit under Section 144 of the U.P. Revenue Code, 2006 is barred by Section 49 of the U.P. C.H. Act.

10. The Sub Divisional Officer, Tamkuhiraj, Kushinagar vide order dated 26-08-2022 rejected the application filed by the petitioner.

11. Against the order dated 26-08-2022 passed by the Trial Court, petitioner filed a revision being Revision No. C202205000001466 before the Commissioner Gorakhpur Division, Gorakhpur.

12. The aforementioned revision was dismissed by Commissioner/respondent no.2 vide order dated 24-03-2023, hence, this writ petition.

13. Learned Senior Counsel appearing for petitioner submitted that application under Order VII Rule 11 of the CPC filed by petitioner in the pending suit has been rejected in an arbitrary manner. He further submitted that for deciding an application under Order VII Rule 11 of the CPC filing of the written statement and framing of the issue is not a condition precedence rather plaint allegation is relevant. He further submitted that if the suit is frivolous and is barred by provisions of law, the same can be considered at the very initial stage. He further submitted that no objection under S