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2024 Supreme(All) 2512
IN THE HIGH COURT OF ALLAHABAD
Saurabh Shyam Shamshery, J.
Udai Raj And Others - Petitioners
Versus
Board Of Revenue And Others - Respondents
WRIT - B No. - 34521 of 1995
Decided On : 12-11-2024
For the Petitioner: CP Dwivedi, Brijesh Kumar Pandey, N.Lal
For the Respondent: C.S.C., R.K. Rathore
The failure to challenge a dismissal for want of prosecution bars any jurisdictional authority from later reinstating such a dismissal without proper legal grounds.
Headnote:(A) U.P. Zamindari Abolition and Land Reforms Act - Section 229 - Civil Procedure Code - Order IX Rule 13 - Restoration of an ex-parte decree - The State sought restoration of a decree passed in 1972, which was dismissed for want of prosecution in 1987 - The Court found that the State did not challenge the dismissal order and ruled that the Board of Revenue acted beyond jurisdiction by setting aside said order without an appeal - The petitioners have been favored by an interim order for decades due to the pendency of the matter. (Paras 2, 10, 18-20)
(B) Jurisdiction of Appellate Authority - An order set aside by an authority not properly challenged cannot be reinstated without proper jurisdiction. (Paras 18-20)
Facts of the case:
The petitioners contested a suit decreed ex-parte in 1972 against the Gaon Sabha, with the State's restoration application dismissed in 1987 for lack of prosecution. After several proceedings, the Board of Revenue later allowed revisiting the dismissal without jurisdiction.
Findings of Court:
The petitioners have an interim order and the State's challenge to orders was improper as no merit was shown.
Issues: The legitimacy of the Board of Revenue's jurisdiction to set aside previous orders and whether the petitioners faced prejudice.
Ratio Decidendi: The State's inaction in challenging earlier dismissals leads to the conclusion that the subsequent restoration requests lacked jurisdictional authority.
Result: Writ petition allowed.
| Table of Content |
|---|
| 1. background of restoration applications (Para 2 , 3 , 4 , 5 , 6) |
| 2. court's analysis on procedural issues and jurisdiction (Para 8 , 14 , 15 , 16 , 18 , 19 , 20 , 21) |
| 3. arguments regarding the validity and jurisdiction of applications (Para 10 , 11 , 12) |
| 4. final order to allow the writ petition (Para 22) |
JUDGMENT :
Saurabh Shyam Shamshery, J.
1. Heard Sri Brijesh Kumar Pandey, learned counsel for petitioner and Sri R.K. Rathore, learned counsel for respondents.
2. In present case, a suit was filed petitioners under Section 229 of U.P. Zamindari Abolition and Land Reforms Act, which was decreed ex-parte vide order dated 07.07.1972, however, its copy is not on record.
3. The State thereafter filed an application under Order IX Rule 13 CPC on 07.03.1986. The said application was dismissed for want of prosecution vide order dated 13.03.1987. Thereafter, one Baijnath claiming himself to be pairokar of State has filed a restoration application to recall the order dated 13.03.1987 and prayed that application filed by State under Order IX Rule 13 CPC be restored and heard on merit.
4. It appears that State has also filed an application for same relief dated 13.03.1987 itself. On 19.06.1990, restoration application filed by Baijnath got dismissed, however, restoration application filed by State was put for hearing on next date fixed. For reference, order dated 19.06.1990 is quoted below :-
5. Later on, it appears that restoration application so filed by State got missed from file, therefore, on 05.07.1990, State has filed another application with a prayer to search the second restoration application filed by State and same may also be allowed. Contents of application are as follows :-
6. Petitioner herein has filed objections to said application dated 05.07.1990 confronting that no such application was filed by State on 13.03.1987 when application filed by State under Order IX Rule 13 CPC was dismissed in default on same day.
7. In aforesaid circumstances, on 29.08.1990, the trial Court dismissed the application filed by State on 05.07.1990 since on 13.03.1987, a restoration application has already been dismissed and thereafter a restoration application filed by State was also dismissed on 19.06.1990 and since no challenge is made against both orders, therefore, nothing survives to decide.
8. In aforesaid circumstances, State filed an appeal before Appellate Court, however, same was dismissed mainly on ground that it was against an interlocutory order. For reference, relevant part of order dated 27.12.1990 is quoted below :-
9. Learned counsel for petitioner refers a finding in said order that contention of State that application filed on 13.03.1987 was missing from records has no substance. Thereafter, State has preferred a revision petition before Board of Revenue. Said revision petition was allowed to the effect that order dated 13.03.1987, 29.08.1990 and 27.12.1990 were set aside and matter was remitted back to decide the application for restoration filed by State which was dismissed for want of prosecution on 13.03.1987. For reference, relevant part of order is quoted below :-
10. Learned counsel further submits that order dated 13.03.1987 whereby application filed under Order IX Rule 13 CPC was rejected for want of prosecution was never challenged in an appeal, therefore, order of Revisional Court to set aside the said order was beyond its jurisdiction.
11. Learned counsel also submits that submission of State that they have filed an application for restoration application on 13.03.1987 was found to be false.
12. Learned Standing Counsel for State as well as learned counsel for respondents have supported the impugned order that no prejudice has caused to petitioner that only a restoration application is being directed to be heard on merit, therefore, in such circumstances, this Court may not interfere with impugned order.
13. Heard learned counsel for parties and perused the record.
14. In present case, as referred above, a su
