A petitioner must pursue available remedies in a timely manner; failure to act can forfeit the right to challenge ex parte orders and affect legal proceedings.

JUDGMENT :

Saurabh Shyam Shamshery, J.

1. Heard Sri R.C. Singh, learned Senior Advocate assisted by Sri Rituvendra Singh Nagvanshi, learned counsel for petitioner, Sri Ramendra Asthana, learned counsel for private respondents, Sri P.S. Chauhan, learned Standing Counsel for State and Sri Digvijay Tiwari, learned counsel for Nagar Palika.

2. Present matter is arising out of a dispute between the parties over a plot no. 2874 area 0.2830 hectare which abuts the National Highway. It is case of the petitioner that their predecessors were zamindars of the plot in question, a grove land and was recorded in the name of petitioner's predecessors after enforcement of Uttar Pradesh Zamidari Abolition and Land Reforms Act. Petitioner's predecessor Shamim Ara has become a bhumidhar.

3. It is also claimed that land in dispute was originally belong to Mohammed Amir and after his death, his wife Hasina Beigh sustained the property and name of her son came to be mutated in revenue records also.

4. Present proceedings commenced when one Ram Lagan filed a declaratory suit bearing no. 64/26-2-2001 under Section 229-B of the Act, showing Shamim Ara and others as defendants and claimed rights on the land in dispute, however, said suit got dismissed for want of prosecution under Order 9 Rule 8 of CPC on 7th July 2003. No proceedings were initiated to revive said suit and after 14 years, one Sripati has filed another suit under Section 144 Uttar Pradesh Revenue Code, 2006 stating interalia therein that his grandfather was a occupancy tenant and his possession has continued even after date of its being vested and as such he has claimed bhumidhari rights.

5. Learned Senior Advocate for petitioner submits that service upon the defendants was deemed to be served by publication, however, petitioner has not received any notice and in absence of notice, proceedings of suit were proceeded and a decree was passed vide judgement dated 3rd May 2018 being an exparte order. Since petitioner came to know about this said judgement. Later on, he filed a restoration application under Order IX Rule 13 CPC to recall the order.

6. During pendency of said recall application, other parties have created their rights and one Sanjeev Kumar filed an appeal against the ex parte decree without disclosing that an application under Order IX Rule 13 CPC was pending at the behest of petitioner. Said first appeal was dismissed vide order dated 12th December 2018 which led said Sanjeev Kumar to file a second appeal.

7. During pendency of second appeal, restoration application so filed by the petitioner under Order IX Rule 13 CPC was rejected vide order dated 6th November 2020 mainly on ground that decree of suit has already been challenged in second appeal.

8. The petitioner thereafter challenged said order by way of filing a revision petition before the Commissioner, however, same also got dismissed vide order dated 16th April 2021 mainly on ground that second appeal was pending against decree. It appears that thereafter petitioner has not challenged the order immediately as well as he has not filed any application to become appellant in pending second appeal since he was also aggrieved by the decree passed in suit.

9. Subsequently, second appeal filed by Sanjeev Kumar got dismissed by the order dated 19th August 2024 since he has not taken steps in pursuance of orders passed therein.

10. In above circumstances, now the petitioner has challenged not only the order dated 30th May 2018 and 16th April 2021 arising out of rejection of application filed under Order IX Rule 13 CPC as well as rejection of revision p