Mahajan Vs Board of Revenue Up at Allahabad and 2 Others

Neutral Citation No. - 2024:AHC:120613

Court No. - 50

Case :- WRIT - B No. - 2680 of 2024

Petitioner :- Mahajan Respondent :- Board Of Revenue Up At Allahabad And 2 Others Counsel for Petitioner :- Amish Kumar Srivastava,Suresh Kumar Srivastava Counsel for Respondent :- C.S.C.,Pradeep Singh

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Hon'ble Ashutosh Srivastava,J.

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Head Shri Amish Kumar Srivastava, learned counsel for the petitioner, learned Standing Counsel for the State-respondents and Shri Pradeep Singh, learned counsel, who has accepted notice on behalf of respondent No. 3, the Gaon Sabha concerned.

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The instant writ petition has been filed questioning the order dated 11.6.2024 passed by the Board of Revenue, U.P. at Allahabad in Case No. RES/38/2022, arising out of Second Appeal No. 10 of 2006-07 (Mahajan versus Lal ji), whereby and whereunder the restoration application seeking recall of the order dated 7.1.2019 dismissing the second appeal for non prosecution, has been rejected.

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Learned counsel for the petitioner submits that the dispute relates to Arazi Nos. 157, 1774, 1815 (New Nos. 859, 874, 882, 885, 907 and 894) situate in village Pipergaon, Taluka Asnav, Tehsil Aroaya, Pargana Bhadohi, District Sant Ravidas Nagar. The property is the self acquired property of the petitioner. The petitioner's brother had died during the life time of his father issueless. However, the respondent No. 2 claiming himself to the brother of the petitioner instituted a suit under Section 229-B of the U.P.Z.A.&L.R. Act claiming co-tenancy rights under a forged family pedigree. The Sub Divisional Officer, Orai vide order dated 31.3.2006 after considering the materials on record oral and documentary dismissed the suit. The appeal filed by the respondent No. 2 against the order of the Sub Divisional Officer before the Commissioner, Vidhyachal Division, Mirzapur was allowed vide order dated 29.11.2006. Aggrieved by the said order, the petitioner preferred a Second Appeal before the Board of Revenue U.P. at Allahabad which was registered as Second Appeal No. 10 of 2006-2007.

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Learned counsel for the petitioner contends that the Board of Revenue vide order dated 8.1.2007 admitted the appeal, called for the Lower Court records and stayed the operation of the order of the learned Commissioner, Vidhyachal Division, Mirzapur. The Second Appeal, however, was dismissed for non prosecution vide order dated 7.1.2019 and the stay order operating was vacated and the lower Court records were transmitted back.

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Learned counsel for the petitioner next contends that the petitioner along with his counsel several times met the dealing Clerk regarding the status of the appeal, but was informed that the records of the second Appeal are not traceable and intimation would be sent to the petitioner. Thereafter, the COVID-19 pandemic engulfed the entire nation and working of the Courts in general and Board of Revenue in particular was hampered. No information could be obtained about the status of the Second Appeal. In the month of January, 2022, the petitioner along with his counsel is stated to have made further inquiries from the dealing Clerk who informed him that the appeal had been dismissed in default vide order dated 7.1.2019. The petitioner on getting the information of dismissal of his second appeal, without further delay on 4.1.2022 moved an application for recall of the order dated 7.1.2019 along with a prayer to condone the delay in filing the application. Learned counsel for the petitioner further submits that arguments were heard on the restoration application as well as the Second Appeal on 27.5.2024 and the orders were reserved. The order dated 11.6.2024 was uploaded on the website on 2.7.2024 and the restoration application has been rejected on the ground of delay.

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Learned counsel for the petitioner has argued that the restoration application was not liable to be rejected in the facts and circumstances that stood attracted to the case of the petitioner only on the ground of delay.

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I have heard the learned counsel for the petitioner as also the counsel for the respondents and have perused the records.

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A perusal of the order dated 11.6.2024 passed by the Board of Revenue reveals that the Board of Revenue has proceeded to reject the application nothing that day to day delay was required to be explained which was not done and as such, cause shown for the delay was not sufficiently explained.

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In the opinion of the Court, the rejection of the application by the order dated 11.6.2024 has resulted in grave miscarriage of justice. Sufficient cause for condonation of delay is required to be understood and applied in a reasonable, pragmatic, practical and liberal manner taking into consideration the facts and circumstances of the case. There cannot be any straight jacket formula that if the delay is inordinate, the application is to be dismissed. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning the delay in a routine manner. At the same time, when triable issues are involved (as in the case at hand) and the Second Appeal was admitted by the Board of Revenue after contest and stay order was passed, the Board of Revenue ought to have recalled the order dismissing the Second Appeal for default/non prosecution and endeavoured to decide the lis on merit.

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The Court also takes note of the fact that the order of the Board of Revenue dismissing the Second Appeal for non prosecution is dated 7.5.2019, but has been signed on 7.1.2019 as is evident from Annexure-8 to the writ petition. Considering the totality of the circumstances, this Court is of the opinion that it is desirable that

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the lis between the parties be decided on merits rather than on technicalities.

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Accordingly the writ petition is allowed .

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The orders dated 11.6.2024 and 7.1.2019 passed by the Board of Revenue, U.P. at Prayagraj rejecting the restoration application is set aside. The delay in filing the restoration application is hereby condoned. The restoration application also stands allowed, subject to costs of Rs.3,000/-, which is to be deposited by the petitioner in the office of Board of Revenue, U.P. Allahabad Bench within 15 days from today. Out of costs, so deposited, the Board of Revenue shall release the amount in favour of the defendants/respondents against proper receipt.

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In case, petitioner does not deposit the costs before the Board of Revenue within the time allowed, he will not get benefit of this order.

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The Board of Revenue is directed to proceed to decide the Second Appeal on merits after affording due opportunity of hearing to all parties concerned expeditiously, preferably within a period of three months from the date of service of certified copy of the order of this Court.

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Order Date :- 25.7.2024 Ravi Prakash

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(Ashutosh Srivastava, J.)

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Mahajan v. Board of Revenue Up at Allahabad and 2 Others

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