The High Court held that recalling an ex-parte order without issuing notice violates Section 209(h) proviso of U.P. Revenue Code, 2006, and set aside the impugned orders, directing a fresh hearing.
Orders dated 16.12.2020 and 21.02.2019 set aside; respondent no. 3 directed to decide the matter afresh after hearing affected parties.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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Reserved on 30.06.2021 Delivered on 23.07.2021
In Chamber
Case :- WRIT - C No. - 1954 of 2021 Petitioner :- Sanjeev Kumar Rai Respondent :- State Of U.P. And 10 Others Counsel for Petitioner :- Chandra Shekhar Sharma Counsel for Respondent :- C.S.C.,Sunil Kumar Shukla,Vivek Kumar Srivastava
Hon'ble Rohit Ranjan Agarwal,J.
1. Heard Sri Chandra Shekhar Sharma, learned counsel for the petitioner and learned Standing Counsel for respondent nos. 1 to 3.
2. This writ petition has been filed assailing the orders dated 16.12.2020 and 21.02.2019 passed by respondent nos. 2 and 3.
3. Facts as disclosed in the petition are that a registered sale deed was executed by father of contesting respondents in favour of petitioner. Mutation in revenue records was done under Section 34/35 of the U.P. Revenue Code, 2006. It appears that on 21.02.2019, a recall application was moved by contesting respondents along with section 5 application for recalling the ex-parte order dated 20.12.2018. On the same day i.e. 21.02.2019, Nayab Tehsildar, respondent no. 3 recalled the order dated 20.12.2018 without issuing any notice to the petitioner and fixed 22.03.2019. Against ex-parte order dated 21.02.2019, petitioner preferred a revision before District Magistrate, Varanasi. The matter was heard by the Additional District Magistrate (Administration), Varanasi and the revision was dismissed on 16.12.2020.
4. Sri Sharma, learned counsel for the petitioner submitted that respondent no. 3 committed manifest error by allowing the recall application on the date on which it was filed i.e. 21.02.2019 without issuing notice to petitioner or affording any opportunity of being heard. This act of respondent no. 3 was in gross violation to proviso to subsection (h) of Section 209 of the U.P. Revenue Code, 2006. He further
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contended that in the revision, petitioner had taken the specific ground that respondent no. 3 had arbitrarily not issued notice as contemplated in the proviso to sub-section (h) of Section 209 and thus the order was void.
5. On the contrary, learned Standing Counsel submitted that the order of respondent no. 3 as well as the revisional authority does not affect the petitioner as the earlier order was an ex-parte order which has been recalled by respondent no. 3 and now the matter was to be heard on merit. However, he could not dispute the legal proposition of law placed by learned counsel for the petitioner.
6. I have heard learned counsel for the parties and perused the material on record.
7. Before proceeding, it would be necessary to have a glance of Section 209 of U.P. Revenue Code, 2006 which is extracted hereunder:-
“ 209 Bar against certain appeals.- Notwithstanding anything contained in sections 207 and 208, no appeal shall lie against any order or decree-
(a) made under Chapter XI of this Code;
(b) granting or rejecting an application for condonation of delay under section 5 of Limitation Act, 1963;
(c) rejecting an application for revision;
(e) remanding the case to any subordinate Court;
(f) where such order or decree is of an interim nature;
(h) where has been passed ex-parte or by default:
Provided that any party aggrieved by order passed exparte or by default, may move application for setting aside such order within a period of thirty days from the date of the order;
Provided further that no such order shall be reversed or altered without previously summoning the party in whose favour order has been passed to appear and be heard in support of it.”
8. From the perusal of proviso to sub-section (h) of Section 209, it is clear that in a case where an ex-parte order has been passed and application has been moved for setting aside such order the earlier order can be reversed or altered only after summoning the party in whose favour
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it has been passed. Thus, it was the bounden duty of respondent no. 3 before entertaining the application on 21.02.2019 that notice must have been issued to petitioner and only after affording opportunity to him that the ex-parte order could have been recalled.
9. From the reading of order itself, it is clear that it was passed on the date on which the application was made by contesting respondents i.e. 21.02.2019 and the order itself records that no notice was issued to the petitioner. Further, in the revision petitioner had taken a specific ground to the effect that no notice or opportunity was provided as contemplated in Section 209 (h) of the Code before passing of the order dated 21.02.2019, but the revisional court proceeded to dismiss the same ignoring the proposition of law.
10. I have perused the material on record as well as the orders passed by respondent no. 2 and 3 which I find are unsustainable in law as the proviso to Section 209 (h) of the U.P. Revenue Code, 2006 specifically provides for the procedure to be adopted in case of an ex-parte order where an application is moved for recalling the same that mandatory notice has to be issued to the party in whose favour the order has been made and then only an ex-parte order or decree can be set aside but in the present case, respondent no. 3 failed to follow the procedure as prescribed under the law, thus, order dated 21.02.2019 as well as the revisional order is unsustainable in the eye of law and the same are liable to be set aside.
11. In view of above, the orders dated 16.12.2020 and 21.02.2019 are hereby set aside and respondent no. 3 is directed to again decide the matter afresh after hearing all the affected parties strictly in accordance with law after adhering to the provisions of law as contained in U.P. Revenue Code, 2006.
12. Writ petition stands partly allowed.
Order Date :- 23.07.2021 V.S.Singh
1 issue framed by the court
Whether a notice and opportunity of hearing must be provided before recalling an ex-parte order under Section 209(h) proviso of U.P. Revenue Code, 2006.
1 provisions across 1 enactments
Sanjeev Kumar Rai
State Of U.P.
Nayab Tehsildar
Rohit Ranjan Agarwal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
