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Court No. 24
Writ Petition No. 1639 of 1997(MS)
Ram Kumar and others ...Petitioners
Versus
State of U.P. & others ...Respondents.
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Hon'ble Rajiv Sharma, J.
Heard Counsel for the parties.
Counsel for the petitioner submits that an appeal under
Section 331 of the U.P. ZA & LR Act was filed before the Board of
Revenue arising out of the judgment and order of Additional
Commissioner, Faizabad Region against Nankau and Raja Ram, who
were already dead under the mistake that the no decree was
prepared pursant to the judgment of the Additional Commissioner
and the decree of lower court contains the name of Nanku and Raja
Ram. When the petitioners came to know about the said inadvertent
mistake in the Second Appeal, they moved an application under
Order 6 Rule 17 of the Code of Civil Procedure for deleting the
names of the respondents i.e. Nankau and Raja Ram and in their
place their sons be incorporated as respondents. This application
was preferred alongwith an application for condonation of delay.
Counsel for the petitioners submits that the Board of Revenue
treating the correction application of the petitioners as substitution
application wrongly dismissed the second appeal. The Board of
Revenue clearly overlooked the fact that the mistake was not
deliberate and the litigants should not suffer due to mistake
committed by the Counsel.
Though on behalf of contesting opposite party an application
for vacation of stay order along with an affidavit has been filed but
the Counsel is not present when the case was called out. In the
affidavit so filed it has been admitted that against the order of the
Commissioner, the petitioner had filed an appeal before the Board of
Revenue and was rejected merely on the ground that the petitioners
had impleaded dead persons as party, which was the mistake of the
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Advocate.
Having considered the materials on record, I am of the opinion
that there is no fault on the part of the petitioners and the Appeal
was filed by them under the mistaken advice of the Counsel. The law
is well settled that the litigant should not suffer due to wrong advice
or mistake committed by his Counsel. Considering the the fact that
this Court passed an order directing the parties to maintain status-
quo on 12.4.1999, I am of the view that the ends of justice would
be secured, if the Board of Revenue decides the application for
deleting the names of dead persons afresh after giving due
opportunity of hearing to the parties.
In view of the above, the order dated 3.4.1997 passed by the
Board of Revenue is hereby quashed. The Board of Revenue shall
make earnest endeavour to conclude the proceedings within a period
of six months from the date of production of certified copy of this
order.
The writ petition stands allowed in above terms.
9.7.2010
HM/-