Advocates:
['RAMESH CHANDRA SINGH', '', 'GOPAL DAS SRIVASTAVA', 'C S C', '', 'SAHAB TIWARI']

Court No. - 36

Case :- WRIT - B No. - 2863 of 2018

Petitioner :- Pooran Singh And 4 Othrs

Respondent :- B.O.R. And 4 Others

Counsel for Petitioner :- Ramesh Chandra Singh,Gopal Das

Srivastava

Counsel for Respondent :- C.S.C.,Sahab Tiwari

Hon'ble Mrs. Sunita Agarwal,J.

Sri Sahab Tiwari learned counsel has put in appearance on behalf

of respondent no.4

By means of the present petition, the petitioners are seeking for

quashing of the order dated 28.11.2017 whereby the recall

application moved by the petitioner for recall of the judement and

order dated 06.06.2017 has been treated as review application on

the ground that the second appeal was dismissed on merits.

It is contended by learned counsel for the petitioner that the

petitioners-appellant was not present on the date of hearing of the

second appeal. Only course left open for the second appellate court

was, therefore, to dismiss the appeal for want of prosecution under

Order 41 Rule 17 (1) of Code of Civil Procedure. It was not open for

the second appellate court to decide the appeal on merits. The

attention of the Court has been invited to the explanation attached

to sub Rule (1) of Rule 17 of Order 41 which reads as under:-

"Explanation: Nothing this sub-rule shall be construed as empowering the

court to dismiss the appeal on the merits."

Reliance is placed upon the judgement of the Apex Court in

Secretary, Department of Horticulture, Chandigarh & another

Vs. Raghu Raj reported in 2008 (13) SCC 395 and Ghanshyam

Das Gupta Vs. Makhan Lal reported in 2012 (8) SCC 745.

Submission of learned counsel for the petitioner is that in any case,

the application for recall of the judgement and order dated

06.06.2017 was filed by the petitioners-appellant so as to bring the

legal postition before the Board of Revenue, it could not have been

treated as review application.

Be that as it may, for recall of the judgement and order dated

06.06.2017, the petitioners have already approached the Board of

Revenue, this Court, therefore, does not find any reason to make

any observations on the merits of the assertion of learned counsel

for the petitioners. However, considering the legal position, in order

to bring the controversy to its logical end, the present petition is

being disposed of with the direction to respondent no.1 namely the

Chairman, Board of Revenue U.P., Allahabad to place the recall

application no.1583 of 2017 filed in Second Appeal no.06 of 2009-

10 before the bench of the Board of Revenue so that the matter be

decided expeditiously, preferably within a period of one month from

the date of submission of certified copy of this order.

It goes without saying that the respondents in the recall

application/second appeal be also heard. The question of revival of

interim order passed in second appeal which had continued till its

dismissal vide judement and order dated 06.06.2017 shall also be

considered while passing final orders on the recall application.

Order Date :- 19.2.2018

Himanshu