The court emphasized the necessity of a fair hearing in legal proceedings, ruling that ex-parte orders and technical rejections of applications cannot deny substantive justice.

JUDGMENT :

Chandra Kumar Rai, J.

1. Rejoinder affidavit filed on behalf of the petitioners is taken on record.

2. Heard Mr. K.K. Tiwari, learned counsel for the petitioner, Mr. Munna Tiwari, learned counsel for respondent nos. 5 to 11, Mr. Jitendra Narain Rai, learned Additional Chief Standing Counsel for the State-respondents and Mr. Arun Kumar Pandey for respondent no.3, Gaon Sabha.

3. Brief facts of the case are that petitioner's father filed a suit for partition under Section 176 of U.P.Z.A. and L.R. Act in respect to the plot nos. 245, 284 situated in Village Khauja Kheda and plot nos. 6, 13, 47, 153, 154, 39 situated in Village Karkheda, Tehsil Tanda, District Rampur. The Trial Court passed the preliminary decree on 21.6.2008 giving one third share to plaintiff-petitioner, defendant no.1 and defendant no.2. Against the preliminary decree dated 21.6.2008, an application under Order 9 Rule 13 C.P.C. has been filed at the instance of the private respondents which was registered as miscellaneous case No. 41/ 07-08/ 08 09. The aforementioned restoration application was heard and disposed of vide order dated 14.9.2009 setting aside the order passed for preliminary decree dated 21.6.2008 and restored the partition suit on its original number for decision afresh. Against the order allowing the application under Order 9 Rule 13 C.P.C., petitioners filed an appeal before the Commissioner which was registered as Appeal No. 84/ 2008-2009 under Section 331 of the U.P.Z.A. and L.R. Act. The appeal was heard by Additional Commissioner, Moradabad Division Moradabad and the same was allowed by judgment dated 19.2.2010 setting aside the order dated 14.9.2009 and affirming the order dated 21.6.2008. Against the order dated 19.2.2010, private respondents filed a revision before the Board of Revenue which was registered as revision No. 85 of 2009-2010 under Section 333 of U.P.Z.A. and L.R. Act. The aforementioned revision was heard ex-parte and the same was allowed setting aside the order of Appellate Court dated 19.2.2010 and maintaining the order of Trial Court dated 14.9.2009. Petitioners filed a restoration application against the order of the Board of Revenue dated 21.2.2023 which has been dismissed vide order dated 5.6.2023 hence this writ petition on behalf of the petitioners for the following relief:-

" Issue a writ, order or direction in the nature of certiorari quashing the order dated 21.2.2023 passed by respondent no.2 i.e. Member (Judicial), Board of Revenue, U.P. At Allahabad/ Prayagraj in case No. REV/85 of 2009-2010, (CNR No. AL2010135999500), Mohammad Islam Vs. Mohammad Usman, as well as order dated 5.6.2023 passed by respondent no.2, i.e. Member (Judicial), Board of Revenue, U.P. At Allahabad/ Prayagraj, contained as Annexure Nos. 8 and 9 to the writ petition respectively."

4. This Court has entertained the petition, passed an order dated 4.7.2023 issuing notice to the private respondent nos. 5 to 11 and parties were directed that no third party interest shall be created in respect to the property in question.

5. In pursuance of the order of this Court dated 4.7.2023, respondent nos. 5 to 11 have put in appearance and have filed their counter-affidavit. Petitioners have filed their rejoinder-affidavit also.

6. Counsel for the petitioners submitted that in partition suit, preliminary decree was rightly passed by the Trial Court giving one third share to plaintiff, defendant no.1 and defendant no.2. He further submitted that private-respondents in order to linger on the proceeding, applied under Order 9 Rule 13 of Civil Procedure Code which was been allowed and the order passed for preliminary decree has been illegally set aside. He further submitted that petitioners filed an appeal before the Commissioner which was allowed considering the family settlement set up in the proceeding as well as the other evidence on the record. He further submitted that the Additional Commissioner has allowed the appeal, set aside the order passed for