Allowed

Pawan Kumar Singh and 2 Others v. Board of Revenue and 6 Others

Allahabad HC25 Nov 2022WRIB/2792/2022

Case brief

AI extract

What is this about?

This court held that a revision filed before the Board of Revenue was not maintainable because the respondent had already filed a revision before the Commissioner on the same order, and the Explanation to Section 210(2) bars disposal in another forum after withdrawal. The impugned stay order was quashed.

What did the court decide?

The impugned order dated 31.8.2022 and the proceedings before the Board of Revenue were quashed; the writ petition is allowed.

Pawan Kumar Singh and 2 Others Vs Board of Revenue and… — Property and Title | Allahabad HC (2022)

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Reserved on 16.11.2022

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Delivered on 25.11.2022

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Case :- WRIT - B No. - 2792 of 2022

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Petitioner :- Pawan Kumar Singh And 2 Others Respondent :- Board Of Revenue And 6 Others Counsel for Petitioner :- Shubham Dwivedi,Bhanu Pratap Singh Counsel for Respondent :- C.S.C.,Bhupendra Kumar Tripathi,Siddharth Singh

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Hon'ble Siddharth,J.

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Heard Sri Shubham Dwivedi and Bhanu Pratap Singh, learned counsels for the petitioners; learned Standing Counsel appearing on behalf of respondent nos.1 & 2; Sri Bhupendra Kumar Tripathi, learned counsel for respondent no.3 and Sri Siddharth Singh, learned counsel for respondent nos. 4 to 7.

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This writ petition has been filed praying for quashing the impugned order dated 31.8.2022 passed in Revision Case No.RES/2279/2022/Varanasi (Jagdish Prasad Singh and others Vs. Anand Prakash Singh and others) having computerized Case No.AL20221470002279, under Section 210 of U.P. Revenue Code, 2006, passed by the court of Board of Revenue, U.P. Allahabad.

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This writ petition involves decision on pure question of law and the parties had agreed that matter may be decided at the admission stage itself and hence after hearing learned counsels for the parties, judgment was reserved.

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The brief facts of the case are that on 25.5.2012 the respondent nos.4 to 7 filed a partition suit No.152 of 2012 (Jagdish Prasad Singh and others Vs. Anand Prakash Singh and others) having computerized Case No.T201214700200057, under Section 176 of U.P. Zamindari Abolition and Land Reforms Act (hereinafter

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referred as “U.P.Z.A. & L.R. Act”) praying for a decree of partition of Khata No.465, Mauza-Berwa, Pargana-Athagava, Tehsil-Pindara, District Varanasi regarding Arazi No.137 and others. The petitioners were arrayed as defendant Nos. 3, 2, 4, respectively, in the aforesaid partition case. The notices were never served on the petitioners and the partition suit was decreed ex-parte vide judgement and decree dated 13.02.2015. The respondent Nos. 4 to 7 preferred a recall application dated 7.5.2018 against the exparte decree dated 13.2.2015 purportedly in the name of petitioner no.3, Urmila Devi. They also obtained the final decree dated 27.12.2019 behind the back of the petitioners. When the petitioner no.1 came to know about the judgement and decree dated 13.2.2015 and 27.12.2019, he preferred a recall application dated 03.12.2020, which was allowed by the order dated 27.06.2022 and the aforesaid orders were set-aside and the partition suit was restored to its original number. The respondent nos. 4 to 7 preferred a revision under Section 210 U.P. Revenue Code, 2006 against the order dated 27.6.2022 on 22.7.2022 before the court of Commissioner, Varanasi Division, Varanasi, but could not get any favourable order. During the pendency of the aforesaid revision before the court Commissioner aforesaid, they preferred another revision No.2279 of 2022 before the Board of Revenue, U.P. at Allahabad, under Section 210 of U.P. Revenue Code and succeeded in getting the impugned order dated 31.8.2022, whereby the order dated 27.6.2022 of the trial court was stayed.

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Learned counsel for the petitioner has submitted that a revision can only be filed before one forum, i.e., Commissioner or Board of Revenue, but in the instant case respondent nos. 4 to 7 preferred the same before aforesaid both the forums. They never disclosed the filing and pendency of the revision before the Commissioner, while filing the revision before the Board of

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Revenue. The revision before the Board of Revenue was not maintainable in view of the provisions of Section 210 of U.P. Revenue Code, 2006. As per Section 210 of U.P. Revenue Code, 2006, even after the withdrawal of the revision from the court of Commissioner, revision cannot be filed before the Board of Revenue. In the present case, false averment was made in the revision filed before the Board of Revenue that no other revision has been filed challenging the same impugned order. The revision before the Commissioner was filed on 22.7.2022 and before the Board of Revenue on 4.8.2022. On 17.8.2022 only they moved an application before the Commissioner for withdrawing the revision without disclosing any specific reason for the same. Hence they have misused the provision of law. Reliance has been placed on paragraph Nos. 11 and 12 of the judgement of this Court in the case of Ganga Ram Dohrey Vs. State, AIR 2002 Allahabad 238 and paragraph nos. 20 and 21 of another judgement of this Court in the case of Vijay Kumar and others Vs. State of U.P. and others, 2019 12 ADJ 680.

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Learned counsel for the respondent nos. 4 to 7 has opposed the submissions made by learned counsel for the petitioners and has stated that despite service of notice on the petitioners, no one appeared in the suit and preliminary decree dated 13.2.2015 was passed by the trial court. The petitioner no.3, Smt. Urmila Devi, mother of petitioner nos. 1 & 2, filed restoration application on 10.5.2018, which was not pressed before the trial court and thereafter Kurra/Phat was prepared and approved by the trial court on 27.12.2019 and direction of final decree was issued. Concealing the filing of earlier restoration application filed by petitioner no.3, petitioner no.1 filed restoration application and orders passing preliminary and final decree were recalled. It has further been submitted by learned counsel for respondent nos. 4 to 7 that single

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application for recalling two orders was not maintainable. He has submitted that the revision was preferred before the Commissioner, Varanasi Division, Varanasi, on 22.7.2022, but the aforesaid court was vacant. Hence respondent nos. 4 to 7 had no option to file revision before the Board of Revenue on 5.8.2022 and withdraw the revision before the Commissioner by filing withdrawal application dated 17.8.2022. The interim order passed by Board of Revenue on 31.8.2022, which was under challenge, was passed after filing of withdrawal application on 17.8.2022. Learned counsel for respondent nos. 4 to 7 has submitted that the provisions of Civil Procedure Code and limitation Act apply to the proceedings under U.P. Revenue Code, 2006, as per Section 214 U.P. Revenue Code. No procedure for withdrawal of the case has not been provided under the U.P. Revenue Code, 2006 or U.P. Revenue Rules 2016. Therefore as as per order Order 23, Rule 1 C.P.C. the liberty was sought for filing revision before the superior court. Hence explanation under Section 210 (2) of U.P. Revenue Code, 2006, will not be attracted in the present case. The issue of dismissal of case from the date of filing of withdrawal application or from the date of order has been dealt by the Apex Court in the case of Anurag Mittal Vs. Shaily Mishra Mittal, AIR (SC) Vol.0, Page3983 a nd in paragraph nos. 10, 11 & 12, the Apex Court has held that where the liberty is sought for filing the fresh case, then the effective date shall be from the date of the order and if no liberty is sought, then the date of filing of withdrawal application shall be treated as date of withdrawal of the case. This Court in the case of Pradeep Kumar Dwivedi Vs. Union of India reported in 2019 Vol 0 (Supreme) Allahabad P- 402, has held that withdrawal of the writ petition without any liberty to file fresh petition bars filing of second writ petition before the High Court, but writ petition before the Hon’ble Supreme Court under Article 32 of the Constitution of

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India. Reliance has also been placed on judgement of this Court in the case of Naresh Kumar Vs. State of U.P. and others reported in 2017 O Vol.-6 ADJ Page 350. Withdrawal of the writ petition without any liberty to file fresh petition bars filing of second writ petition before the High Court and that the proceedings under Order 23 Rule 1 C.P.C. does not amounts to an order on merits and the Principle of res-judicata do not apply thereto. In the case of Balvinder Kaur Vs. Additional Commissioner (Administration), Lucknow, 2020 Supreme (All) 1217, this Court has considered the hardship of the respondent regarding withdrawal of the suit and set aside the impugned as well as revisional order. It has finally been submitted that in the revision filed before the court of Additional Commission no argument took place on account of lawyer’s strike and it was withdrawn. In the light of the judgement of the Apex Court, second revision before the court of Board of Revenue is not barred even if no permission was sought for filing the same.

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After hearing the rival contentions, it would be relevant to consider the provision of Section 210 of U.P. Revenue Code, 2006 before proceeding further with this case. The provision of Section 210 of U.P. Revenue Code, 2006, is as follows:-

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“(1) The Board or the Commissioner may call for the record of any suit or proceeding decided by any subordinate revenue Court in which no appeal lies, or where an appeal lies but has not been preferred, for the purpose of satisfying itself or himself as to the legality or propriety of any order passed in such suit or proceeding; and if such subordinate Court appeals to have -

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(a) exercised a jurisdiction not vested in it by law; or

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(b) failed to exercise a jurisdiction so vested; or

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(c) acted in the exercise of such jurisdiction illegally or with material irregularity, the Board, or the Commissioner, as the case may be, may pass such order in the case as it or he thinks fit.

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(2) If an application under this section has been moved by any person either to the Board or to the Commissioner, no further application by the same person shall be entertained by the other of them.

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Explanation. - For the removal of doubt it is, hereby, declared that when an application under this section has been moved either to the Board or to the Commissioner, the application shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other of them.

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(3) No application under this section shall be entertained after the expiry of a period of sixty days from the date of the order sought to be revised or from the date of commencement of this Code, whichever is later.”

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Further consideration of Order 23, Rule 1 C.P.C. would also be relevant in the this case and hence the same has also been quoted hereinbelow.:

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“ 3[1. Withdrawal of suit or abandonment of part of claim.—(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:

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Provided that where the plaintiff is a minor or other person to whom the provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court.

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(2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person.

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(3) Where the Court is satisfied,—

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(a) that a suit must fail by reason of some formal defect, or

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(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.

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(4) Where the plaintiff—

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(a) abandons any suit or part of claim under sub-rule (1), or

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(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim.

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(5) Nothing in this rule shall be deemed to authorise the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiff.]”

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Section 214 U.P. Revenue Code, 2006 clearly provides as follows:-

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“Unless otherwise expressly provided by or under this Code, the provisions of the Code of Civil Procedure, 1908 and the Limitation Act, 1963 shall apply to every suit, application or proceeding under this Code.”

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After hearing the rival submissions of learned counsels for the parties, this Court finds that from a bare perusal of Section 214 U.P. Revenue Code, it is clear that the provisions of the Code of Civil Procedure and the Limitation Act will apply to the proceeding of suit, application or other proceeding under the U.P. Revenue Code, 2006, unless expressly provided otherwise by or under the Code aforesaid. Hence it is clear that the provision of C.P.C. will apply when such an eventuality is not expressly provided under U.P. Revenue Code, 2006. In the present case, Section 210 (2) only explanation of U.P. Revenue Code clearly provides a bar for

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entertaining a revision under Section 210 of the Code, if such a revision has already been filed by any person either before the Board or Commissioner. The explanation to Section 210 (2) of the U.P. Revenue code, 2006 clearly provides that when an application under this section has been moved either to the Board or to the Commissioner, the same shall not be permitted to be withdrawn for the purpose of filing the application against the same order to the other forum. The reliance on the judgement of this Court in the case of Ganga Ram Dohrey (supra) is relevant so far it provides that provisions of special law prevail over the provisions of general law of C.P.C. Learned counsel for respondent nos. 4 to 7 has relied upon the judgement of the Apex Court in the case of Anurag Mittal (supra) which is regarding withdrawal of a suit. It was held by the Apex Court that no order of withdrawal of a suit is necessary unless the plaintiff seeks liberty to institute a fresh suit. The judgment will not help the respondent nos. 4 to 7 since in the present case there is express provision under Section 210 (2), only explanation, which bars filing of second revision before higher forum once the revision was filed before the first forum of Commissioner of Division. The judgement in the case of Pradeep Kumar Dwivedi (Supra) and Balvinder Kaur (supra) are distinguishable on facts. In the present case, the resort to same remedy was made before two forums and there is clear bar under the special law of U.P. Revenue Code under Section 210 (2), only explanation, that once remedy before one forum is availed it will bar second remedy before another forum.

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Clearly this Court has no option but to hold that revision of respondent nos. 4 to 7 before the Board of Revenue, U.P. at Allahabad, was not maintainable.

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The impugned order dated 31.8.2022 and the proceedings of revision before the Board of Revenue, U.P. Allahabad, are hereby quashed.

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The writ petition is allowed.

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It is open for respondent nos. 4 to 7 to file appropriate application before the Commissioner, Varanasi Division, Varanasi, for recalling the order dismissing the revision, affording opportunity of hearing to the parties and then pass appropriate order in the revision preferred by the respondent nos. 4 to 7. In case such application is filed before the Commissioner, Varanasi Division, Varanasi, he will pass appropriate order on the same within 10 days. Since the parties are represented before this court through their counsels, they are directed to appear before the court of Commissioner, Varanasi Division, Varanasi, on 05.12.2022.

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Order Date :- 25.11.2022 Ruchi Agrahari

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Digitally signed by RUCHI AGRAHARI Date: 2022.11.25 15:57:49 IST Reason: Location: High Court of Judicature at Allahabad

Pawan Kumar Singh and 2 Others v. Board of Revenue and 6 Others

Case brief

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Pawan Kumar Singh and 2 Others v. Board of Revenue and 6 Others

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