1. The delay for approaching the Court belatedly has satisfactorily been explained in paragraph-16 of the writ petition.
2. Heard Sri Nipun Singh, learned counsel for the petitioner, Sri M.D. Singh, learned Senior Counsel assisted by Sri Sunil Pratap Singh, Advocate and the learned Standing Counsel.
3. When an application under Section 24 of the U.P. Revenue Code, 2006 was decided on 22.06.2016, the petitioner being aggrieved by the fact that it was an exparte order filed a Recall Application and when the Recall Application was dismissed on 09.03.2017, a First Appeal before the Additional Commissioner, Meerut, Division, Meerut was filed. However, when the First Appeal was allowed on 21.07.2017, the respondent nos. 3 and 4 filed a Revision before the Board of Revenue and when the Revision was allowed saying that the First Appeal against the order dated 22.06.2016 was not maintainable as the same was not filed against the order dated 09.03.2017 then the instant writ petition was filed.
4. Learned counsel for the petitioner has submitted that when the order dated 22.06.2016 was passed which according to the petitioner was exparte then as per Section 209(h) of the U.P. Revenue Code, 2006, there was no other remedy available with the petitioner other than to file a Recall Application and when the Recall Application was dismissed holding that the order dated 22.06.2016 was not an ex-parte one, the petitioner could have filed only a First Appeal under Section 24(4) read with Section 207 of the U.P. Revenue Code, 2006 against the order dated 22.06.2016.
5. Learned counsel for the petitioner has assailed the order of the Revisional Court and has submitted that when the First Appeal was filed against the order dated 22.06.2016 then the same was maintainable as the Sub-Divisional Magistrate had found that the order was not an exparte one. Petitioner relied upon the judgement of the Supreme Court reported in 2009 Volume (2) SCC 205 and submitted that against the order dated 22.06.2016, an Appeal was very much maintainable even if earlier a Recall Application had been filed and thereafter was rejected. He also submitted that when the Recall Application was rejected by saying that the order dated 22.06.2016 was not ex-parte then the order dated 22.06.2016 had not merged with the order dated 09.03.2017 and, therefore, the First Appeal was definitely maintainable only against the order dated 22.06.2016. In this regard, he specifically relied upon paragraph-15 of the judgement and, therefore, the same is reproduced hereinunder:-
"The proviso appended to Order IX Rule 13 of the Code of Civil Procedure postulates that when an ex-parte decree has been passed against some of the defendants and it is necessary to set aside the entire decree, the Court is not powerless to do so. If an application for setting aside the ex-parte decree was maintainable at the instance of the appellants, we fail to understand as to why a separate suit was required to be filed. When an ex-parte decree is passed, the defendant may have more than one remedies. He may file a suit contending that the decree was obtained fraudulently. He may file an application under Order IX Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree. He may prefer an appeal from the ex-parte judgment and decree. In a given case, he may also file a review application."
6. Learned counsel for the petitioner also relied upon paragraph-17 of the judgement of Supreme Court reported in 2018 Volume (2) SCC 649. Since the petitioner relied upon the paragraph-17 of the judgment, the same is being reproduced hereinunder:-
"A defendant against whom an ex-parte decree is passed has two options: The first is to file an appeal. The second is to file an application under Order IX Rule 13. The defendant can take recourse to both the proceedings simultaneously. The right of appeal is not taken away by filing an application under Order IX Rule 13. But if the appeal is dismissed as a result of which the ex-parte decree merges with the order of the Appellate Court, a petition under Order IX Rule 13 would not be maintainable. When an application under Order IX Rule 13 is dismissed, the remedy of the defendant is under Order XLIII Rule 1. However, once such an appeal is dismissed, the same contention cannot be raised in a first appeal under Section 96. The three Judge bench decision in Bhanu Kumar Jain [(2005) 1 SCC 787] has been followed by another bench of three Judges in Rabindra Singh v Financial Commissioner, Cooperation [(2008) 7 SCC 663] and by a two Judge bench in Mahesh Yadav v Rajeshwar Singh [(2009) 2 SCC 205]. In the present case, the original defendant chose a remedy of first appeal under Section 96 and was able to establish before the High Court, adequate grounds for setting aside the judgment and decree."
7. Learned counsel for the petitioner therefore submitted that when the petitioner had filed the First Appeal against the order dated 22.06.2016 then he had no intention of filing the Appeal against the order dated 09.03.2017 and, therefore, there was no necessity of filing the Appeal against the order dated 09.03.2017. He submitted that by the order dated 09.03.2017 there was no decision of the case. The order had only decided that the order dated 22.06.2016 was not an ex-parte one. Therefore, definitely the order dated 22.06.2016 had not merged with the order dated 09.03.2017. He further submitted that the Appellate Court while adjudicating upon the order dated 22.06.2016 could amongst other things have found that the order was an ex-parte one. He submits that this is exactly what the Appellate Court had done and in doing so it had not committed any error.
8. Sri M.D. Singh, learned Senior Advocate assisted by Sri Sunil Pratap Singh, learned counsel appearing for the respondents, however, submitted that when the First Appeal was filed after the Recall Application was filed then the order dated 09.03.2017 also ought to have been challenged. Learned counsel for the respondents further submitted that once when the First Appellate Court had found that the order was ex-parte then it should have immediately held the First Appeal was not maintainable and should have dismissed the First Appeal under the proviso of Section 209 of the Code.
9. Learned counsel for the Caveator-respondents also submitted that the First Appellate Court erred in deciding the First Appeal without condoning the delay.
10. Having heard the learned counsel for the parties, I am of the view that when the Sub-Divisional Magistrate had found that the order dated 22.06.2016 was not an ex-parte one then there was only one option left with the petitioner and that was to file the First Appeal. Not filing any Appeal against the order dated 09.03.2017 did not make the Appeal incompetent. The Revisional Court i.e. the Board of Revenue erred in saying that the First Appeal was not maintainable as the petitioner had not filed any Appeal against the order dated 09.03.2017. When the order dated 09.03.2017 was passed and it was held that the order dated 22.06.2016 was not an ex-parte order then the only option left with the petitioner was to file an Appeal against the order dated 22.06.2016. There was no merger with the order dated 22.06.2016 with the order dated 09.03.2017. Also when the Appellate Court decided the First Appeal then it was well within its jurisdiction to have found that the order dated 22.06.2016 was an ex-parte one.
11. Under such circumstances, the order of the Revisional Court i.e. of the Board of Revenue dated 09.12.2019 is set aside. The matter is remanded back to the Revisional Court i.e. the Board of Revenue. Before the Board of Revenue, the respondents shall have all the opportunity to assail the order of the First Appellate Court (wrongly mentioned as order of the Revisional Court in the Revisional Court's order).
12. With these observations/directions, the writ petition is partly allowed.
Order Date :- 27.1.2021 Siddhant (Siddhartha Varma,J.)