JUDGMENT
Arun Tandon, J.
1. Heard Sri Sankatha Rai, Advocate assisted by Sri Ajay Kumar Singh, learned counsel for the petitioner, Sri M.P. Srivastava, learned counsel for the respondent No. 5 and Learned Standing Counsel for the respondent Nos. 1 to 3. Nobody is present on behalf of the respondent No. 4 even in the revised reading of the cause list.
2. Respondent No. 5, Bhuidhar alias Jairam son of Basanta alias Mataru, filed Original Suit No. 821 of 1997 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act for declaration that he was the Bhumidhar of Plot No. 977 Ka area 1.18 acre corresponding to old Plot No. 1157 situated in village Kariyanw, Pargana Ghisuwa, Tehsil Machhlishahr, Jaunpur. The suit so filed was directed to proceed ex parte under order dated 28th July, 1998 and thereafter the Sub-Divisional Officer dismissed the suit even after ex parte proceedings by means of the order dated 28th August, 1998. The plaintiff filed an application for review of the order of the Sub-Divisional Officer dated 28th August, 1998 dismissing the suit. The said application was filed on 9th September, 1998. On the review application an office report was submitted dated 11th September, 1998 wherein it was mentioned that in the original suit proceedings, an order for proceeding ex parte, against the defendant-petitioner had been passed and therefore it is not necessary to issue any notice on the review application to the defendants.
3. In view of the aforesaid report, the Sub-Divisional Officer proceeded to decide the review application without issuing any notice to the defendants and by means of the order dated 16th November, 1998 partly granted the relief prayed for in the said suit, it was directed that the name of the defendants be expunged from the relevant revenue entries in respect of the property in question.
4. Feeling aggrieved by the aforesaid order of the Sub Divisional Officer passed on the review application the defendant-petitioners filed a revision before the Commissioner, Varanasi Division, Varanasi, which was numbered as Revision No. 139 of 1999 (a copy whereof has been enclosed as Annexure No. 20 to the writ petition). The plaintiff also filed a Revision against the part of the judgment and decree of the Sub Divisional Officer, whereby certain reliefs prayed for were denied, which was numbered as Revision No. 49 of 1998. Both the revisions were clubbed together and have been decided vide order dated 30th July, 2003 by the Assistant Commissioner (Judicial First), Varanasi Region, Varanasi. The Assistant Commissioner has dismissed both the revisions affirming the order of the Sub-Divisional Officer dated 16th November, 1998. It is against the aforesaid order of the Assistant Commissioner dismissing the revision as filed by the defendants-petitioners, that the present writ petition has been filed.
5. It is contended on behalf of the petitioner that the procedure adopted by the trial court/Sub-Divisional Officer for the purpose of deciding the review application is manifestly illegal and in violation of the principles of natural justice. It is submitted that even if the defendant-petitioner had not participated in the suit proceedings at the trial stage, it was mandatory for the trial court to have issued notices to the defendants before proceeding to entertain and decide the review application on merits. It is further submitted that despite specific pleas having been raised by the defendants in his Revision before the Commissioner, the Commissioner has not taken note of the said contention nor he has recorded any finding in respect thereto. Petitioner contends that violation of principles of natural justice vitiates the entire proceedings, which have been taken against the petitioner and therefore both, the order of trial court as well as of the Commissioner are liable to be set aside and the matter be remanded to the trial court to decide the review application afresh strictly in accordance with law after affording opportunity of hearing to the petitioner.
6. In reply it is contended on behalf of the respondents that the trial court had issued notices at the initial stage of trial of the suit filed by the plaintiff and despite sufficient knowledge of the suit proceedings the petitioner had not participated in the same. It is further contended that the Sub Divisional Magistrate has recorded finding of fact based on material on record and as pleaded by the parties, therefore there is no illegality or infirmity in the order passed by the Sub Divisional Magistrate. The Revisional Court has limited jurisdiction and therefore could not re-appraise the evidence qua service of notices on the review application which was necessarily required for arriving at a finding that petitioner has not been served. The proper remedy for the petitioner was to file a recall application before the trial court. It is therefore, submitted that the writ petition as filed by the petitioner has no merits and is liable to be dismissed.
7. I have heard learned counsel for the parties and have gone through the records.
8. In order to appreciate the controversy raised between the parties, it may be relevant to reproduce Section 341 of the U.P. Zamindari Abolition and Land Reforms, Act 1950 (for short U.P.Z.A. & L.R. Act) read with Section 114 of the Civil Procedure Code (for short C.P.C.). Section 341 of the U.P.Z.A. & L.R. Act as well as Section 114 of the C.P.C. read as follows:
“Section 341. Application of certain Acts to the proceedings of this Act— Unless otherwise expressly by or under this Act the provisions of the Indian Court Fees Act, 1870, the Code of Civil Procedure, 1908 and the [Limitation Act, 1963] [including Section 5 thereof] shall apply to the proceedings under this Act.
Section 114. Review. —Subject as aforesaid, any person considering himself aggrieved—–
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.”
9. Between the parties there is no dispute with regard to applicability of Order XLVII Rule 4 (2) of the C.P.C. to the review application fled under Section 229-B of the U.P.Z.A. & L.R. Act. Order XLVII Rule 4 of the C.P.C. reads as follows:
“4. Application where rejected.—–(1) Where it appears to the Court that there is no sufficient ground for a review, it shall reject the application.
Application where granted.——-(2) Where the Court is of opinion that the application for review should be granted, it shall grant the same:
Provided that—–
(a) no such application shall be granted without previous notice to the opposite party, to enable him to appear and be heard in support of the decree, or order, a review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made, without strict proof of such allegation.”
10. Order XLVII Rule 4 (2) of the C.P.C. lays down the procedure for grant of a review application. The provisions of Order XLVII Rule 4 (2) of the C.P.C. which virtually embody the principle of natural justice are mandatory. A notice is required to be issued before granting the review application even when the opposite party has not contested the original proceedings. Order XLVII, Rule 4 (2) of the C.P.C. make no distinction in respect of the procedure to be followed for granting a review application against a decree/order which has been passed ex-parte vis-a-vis the decree/order, which has been passed after hearing the parties. Non-compliance of the procedure under Order XLVII Rule 4(2) of the C.P.C. renders the order of the trial court allowing the review application a nullity as it violates the principles of natural justice.
11. The Additional Commissioner in the impugned order has also failed to take note of the aforesaid legal aspects of the matter and has not adverted to the mandatory provisions of Order XLVII Rule 4(2) of the C.P.C. while dismissing the revision as filed by the defendant- petitioner. The order passed by the trial court dated 16th November, 1998 allowing the review application as well as the order passed by the Additional Commissioner dated 30th July, 2003 dismissing the revision filed by the defendant-petitioner are legally not sustainable in eyes of law.
12. The contention of the respondents that the petitioner should have filed a recall application before the trial Court/Sub-Divisional Officer for recall of the order of the Sub-Divisional Officer on review application and the revision as filed by the petitioner was not the proper remedy is also misconceived. The Division Bench of this Court in the judgment reported in 1994 (2) E.S.C. 498 (Viduyottama Gupta v. Kr. Nirmala Gupta and Ors.), has held that two remedies are available to the party against whom an ex parte order has been passed, namely, (a) he may file a recall application before the Court which had passed the order; and (b) he may move the higher court by way of appeal/revision, if permissible under an statutory provision. It is for the concerned party to chose any of the two forums available. Therefore, if the petitioner has chosen to file a revision under Section 333-A and the revision is legally maintainable, it cannot be said that there is any legality in filing of the same.
13. In view of the facts and circumstances of the case the orders passed by the Sub-Divisional Officer dated 16th November, 1998 on review application filed by the plaintiff-respondent as well as order of the Additional Commissioner dated 30th July, 2003 are hereby quashed. The review application as filed by the plaintiff-respondent dated 9th September, 1998 is restored to its original number and the trial court, namely, Sub-Divisional Officer is directed to decide the same afresh strictly in accordance with law after affording opportunity of hearing to the petitioners. Since the review application is of the year 1998 and more than six years have elapsed, it would be appropriate that the same may be decided at the earliest possible. It is provided that the parties petitioner shall present himself before the trial court along with a certified copy of this order. The trial court shall thereafter calls for record and fix a date in the presence of learned counsel for the parties for hearing of the review application afresh and shall conclude the proceedings within two months thereof.
14. The writ petition is accordingly allowed. No order as to costs.