# Hausila Prasad v. Addl. Commissioner (Admn.), Ayodhya Region, Ayodhya & Ors

- **Citation:** (2023) 10 ILRA 1143
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-27
- **Case number:** Writ-C No. 8185 of 2023
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hausila-prasad-v-addl-commissioner-admn-ayodhya-region-ayodhya-ors-49307
- **Pages:** 7

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 34, 207 & 210 - Code of Civil
Procedure, 1908 - Order 39 Rules 1, 2,
2A, 4 - Order 43 Rule 1(r) - Mutation
Proceedings - Interlocutory Order -
Recall of Interim Order - Maintainability
of Revision and Appeal
The petitioner, Hausila Prasad, challenged the
Tehsildar's order dated 06.02.2023, recalling
an ex-parte interim order dated 08.03.2022 in
a mutation case under Section 34 of the U.P.
Revenue Code, 2006, and the Additional
Commissioner's
order
dated
20.03.2023,
dismissing his revision under Section 210 as
non-maintainable, deeming the Tehsildar's
order interlocutory.

Held: (1) The writ petition was disposed of
without interference in the impugned orders.
(2) The order dated 06.02.2023, recalling an
ex-parte interim order, falls under Order 39
Rule 4 of the Code of Civil Procedure, 1908,
and is appealable under Order 43 Rule 1(r),
read with Section 207 of the U.P. Revenue
Code, 2006. (3) The Additional Commissioner's
dismissal of the revision as non-maintainable
was just, as an appeal under Section 207 was
the appropriate remedy. (4) The petitioner was
granted liberty to file an appeal under Section
207 against the order dated 06.02.2023. (5)
The court clarified that orders affecting
valuable rights, even in mutation proceedings,
may
be
appealable
if
they
possess
characteristics of finality, as per Qumar Jahan
Vs Board of Revenue and Kiran Bala Srivastava
Vs Jai Prakash Srivastava.

Case Law Cited:

## Text

10 All. Hausila Prasad Vs. Addl. Commissioner (Admin.), Ayodhya Region, Ayodhya & Ors. 1143
the amount is not recoverable under the
provisions of Act of 1972 but for the
reasons discussed above, this Court does
not find it a fit case for exercising its
discretionary jurisdiction in favour of
petitioner. In view of the aforesaid
judgments of the Supreme Court, more
particularly in view of judgments passed in
Shangrila Food Products Ltd. (supra) and
Ramesh Chandra Sanka and Others
(supra), petitioner is directed to pay to the
respondents U.P.S.R.T.C. entire due of
Rs.266 Lakhs along with an interest of 5%
from the date it is due within a period of
three months.

20. With the aforesaid, the writ
petition is disposed of.

----------
(2023) 10 ILRA 1143
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 27.09.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ-C No. 8185 of 2023

Hausila Prasad ...Petitioner
Versus
Addl. Commissioner (Admn.), Ayodhya
Region, Ayodhya & Ors. ...Respondents

Counsel for the Petitioner:
Brijesh Kumar

Counsel for the Respondents:
C.S.C.

Civil Law - U.P. Revenue Code, 2006 -
Sections 34, 207 & 210 - Code of Civil
Procedure, 1908 - Order 39 Rules 1, 2,
2A, 4 - Order 43 Rule 1(r) - Mutation
Proceedings - Interlocutory Order -
Recall of Interim Order - Maintainability
of Revision and Appeal
The petitioner, Hausila Prasad, challenged the
Tehsildar's order dated 06.02.2023, recalling
an ex-parte interim order dated 08.03.2022 in
a mutation case under Section 34 of the U.P.
Revenue Code, 2006, and the Additional
Commissioner's
order
dated
20.03.2023,
dismissing his revision under Section 210 as
non-maintainable, deeming the Tehsildar's
order interlocutory.

Held: (1) The writ petition was disposed of
without interference in the impugned orders.
(2) The order dated 06.02.2023, recalling an
ex-parte interim order, falls under Order 39
Rule 4 of the Code of Civil Procedure, 1908,
and is appealable under Order 43 Rule 1(r),
read with Section 207 of the U.P. Revenue
Code, 2006. (3) The Additional Commissioner's
dismissal of the revision as non-maintainable
was just, as an appeal under Section 207 was
the appropriate remedy. (4) The petitioner was
granted liberty to file an appeal under Section
207 against the order dated 06.02.2023. (5)
The court clarified that orders affecting
valuable rights, even in mutation proceedings,
may
be
appealable
if
they
possess
characteristics of finality, as per Qumar Jahan
Vs Board of Revenue and Kiran Bala Srivastava
Vs Jai Prakash Srivastava.

Case Law Cited:

1.
Raja
Ram
&
ors.
Vs
Additional
Commissioner, Faizabad Division, Faizabad &
ors., Misc. Single No. 3301 of 2006 (Allahabad
HC, 13.04.2015);

2. Jagdish Prasad Vs St. of U.P. & ors., Writ B778 of 2022 (Allahabad HC, 15.02.2023);

3. Raj Shri Agarwal & ors. Vs Sudheer Mohan &
ors.,
MANU/UP/2351/2022
(Allahabad
HC,
22.04.2022);

4. Qumar Jahan & ors. Vs Board of Revenue,
U.P., Lucknow, Writ-B No. 443 of 2023
(Allahabad HC, 23.05.2023);

5. Nanda Dulal Pradhan and another Vs Dibakar
Pradhan and another, 2023 (158) RD 452;
1144 INDIAN LAW REPORTS ALLAHABAD SERIES
6. Pratibha Devi Vs Additional Commissioner
(Administration),
Varanasi
Division
&
ors.
(Allahabad HC);

7. Kiran Bala Srivastava Vs Jai Prakash
Srivastava, MANU/UP/2771/2004 (Allahabad HC,
Full Bench).

(Delivered by Hon'ble Saurabh Lavania, J.
)

1. Heard.

2. By means of the present petition,
the petitioner has challenged the order
dated 06.02.2023 passed by opposite party
No.2-Tehsildar, Tehsil-Bikapur, DistrictAyodhya in a case instituted under Section
34 of U.P. Revenue Code of 2006 (in short
"Code of 2006") registered as Case
No.03458 of 2019, Computerized Case
No.T201904230303458, (Rampoojan vs.
Lalta Prasad), and also the order dated
20.03.2023 passed by opposite party No.1Additional Commissioner (Administration),
Ayodhya Region, Ayodhya in revision filed
under Section 210 of the Code of 2006
registered as Revision No.407 of 2023,
Computerized
Case
No.C202304000000407, (Hausila Prasad
vs. Rampoojan).

3. By the impugned order dated
06.02.2023, the opposite
party
No.2
recalled the interim order dated 08.03.2022,
which was passed on an application dated
28.07.2021 preferred by petitioner-Hausila
Prasad praying therein that the order dated
27.07.2020 be recalled and the case be
restored to its original number alleging
therein that order dated 27.07.2020 is an
ex-parte
order.
Vide
order
dated
08.03.2022, the opposite party No.1 also
fixed a date for disposal of application for
restoration preferred by the petitioner.

4. The order dated 06.02.2023 was
challenged by means of revision preferred
under Section 210 of the Code of 2006,
which was registered as Revision No.407
of
2023,
Computerized
Case
No.C202304000000407, (Hausila Prasad
vs.
Rampoojan).
This
revision
was
dismissed vide order dated 20.03.2023 at
admission stage observing that the order
dated 06.02.2023 is an interlocutory order,
as such, revision is not maintainable.

5. The submission of the counsel for
the petitioner while challenging the order
20.03.2023 is to the effect that in view of
the language couched under Section 210 of
the Code of 2006, the revision challenging
the
order
dated
06.02.2023
was
maintainable as this order was affecting the
rights of the petitioner.

6. In support of his submission,
learned counsel for the petitioner placed
reliance on the judgment dated 13.04.2015
passed in Misc. SINGLE No.3301 of 2006
in the case of Raja Ram and Others vs.
Additional
Commissioner,
Faizabad
Division, Faizabad and others.

7. Based upon the above referred
judgement dated 13.04.2015, the counsel
for the petitioner says that in this case the
order
dated
15.06.2006
passed
by
concerned Tehsildar was recalled vide
order dated 17.06.2006 and the revision
challenging the order dated 17.06.2006 was
dismissed vide order dated 03.07.2006 on
the ground that the order under challenge is
an interlocutory order and this Court after
considering the relevant provisions i.e.
Section 219 of U.P. Land Revenue Act,
1901 (in short "Act of 1901") interfered in
the order of revisional authority dated
03.07.2006 and remanded the matter back
10 All. Hausila Prasad Vs. Addl. Commissioner (Admin.), Ayodhya Region, Ayodhya & Ors. 1145
to the concerned authority to decide the
revision afresh.

8. He further submitted that in the
judgment dated 15.02.2023 passed in Writ
B-778 of 2022, (Jagdish Prasad vs. State
of U.P. and Others), the issue before this
Court was to the effect that as to whether a
revision challenging an order rejecting an
application for amendment would be
maintainable. This Court after considering
the Section 219 of the Code of 1901 and
the judgment passed by this Court in the
case of Raja Ram (supra) as also the
judgment dated 22.04.2022 passed in the
case of Raj Shri Agarwal and Others vs.
Sudheer Mohan and Others reported in
MANU/UP/2351/2022, observed that the
Section 219 of the Act of 1901 empowers
the revisional authority to consider the
legality or propriety of an order passed by
revenue court subordinate to him, if the
same is allowed to stand, results in failure
of justice or cause irreparable injury to the
party against whom it is made. The relevant
para of the judgment passed in the case of
Jagdish (supra) referred is extracted
hereinunder:-

"Moreover
the
expression
"legality or propriety of the order passed
or proceeding held" in Section 219 of the
Act of 1901, empowers the revisional
authority to consider the legality or
propriety of an order passed by the revenue
court subordinate to him if the same is
allowed to stand, results in failure of
justice or causes irreparable injury to the
party against whom it is made. Further, if
an order passed by subordinate revenue
court on any application is allowed to
stand affecting the rights of the parties, it
would cause failure of justice or cause
irreparable injury to the party against
whom it is made, therefore, if the said
condition is present, the revision against
any order passed by the subordinate
revenue court would be maintainable under
Section 219 of the Act of 1901. As per
Section 219 of the Act of 1901, if the
subordinate revenue court exceeds its
jurisdiction, or exercise its jurisdiction
illegally or with material irregularity, the
revision would be maintainable."

9. Further submission is that in the
judgment dated 23.05.2023 passed in WritB No.443 of 2023 passed in the case of
Qumar Jahan and others vs. Board of
Revenue, U.P., Lucknow before this
Court, the issue was to the effect that if
final order passed in a mutation case is
recalled by the Tehsildar, Officer of
Original Jurisdiction, as indicated in Third
Schedule of U.P. Revenue Code of 2006 (in
short "Code of 2006") then whether an
appeal would lie or not. This Court after
considering the relevant provisions of Code
of 2006 i.e. Section 207 and Section 209(h)
as also the Third Schedule of Code of 2006
and the judgment passed in the case of
Nanda Dulal Pradhan and another vs
Dibakar Pradhan and another; reported
in 2023 (158) RD452; Pratibha Devi vs.
Additional
Commissioner
(Administration),
Varanasi
Division
and Others and the judgment of the Full
Bench of this Court passed in the case of
Kiran Bala Srivastava vs. Jai Prakash
Srivastava;
reported
in
MANU/UP/2771/2004
observed
that
appeal under Section 207 would be
maintainable.
The
relevant
portion
referred above on the production reads as
under:-

"Following can be summarized
from the observations made by the Full
Bench of this Court in the judgment,
referred above:-
1146 INDIAN LAW REPORTS ALLAHABAD SERIES

(i) An 'order', which affects the
valuable rights of party, would be a 'final
order'.

(ii) An 'order' which decided the
matter of moment or which affected
valuable rights of the party or which tended
to work serious injustice to the party
concerned would fall within the expression
'judgment'.

(iii) An 'order' or 'interlocutory
order' possessing the characteristics and
trappings of finality or affecting valuable
rights of the party or deciding the
important aspect of the case/trial in main
or ancillary proceeding will be 'judgment'.

(iv)
Any
'order',
which
substantially affects the rights of the party
or decides certain rights of the parties
cannot be said to be an 'interlocutory
order'.

Having considered the aforesaid,
this Court is of the view that an order
passed under first proviso to Section 209
(g) affecting the valuable rights of the party
would fall under the expression 'final order'
(a term used under Section 207) and, as
such, the aggrieved party can prefer an
appeal under Section 207 challenging the
said order.

Thus, the appeal, challenging the
order passed on an application preferred
by the party aggrieved by an order (exparte or by default or treating to be exparte)
passed
in
'Mutation
Case/proceedings' would be maintainable
under Section 207 of the Code of 2006 for
the
reason
that
the
'Mutation
Case/proceeding', is specified in Third
Schedule of Code of 2006 and the same
also provides the remedy of 'appeal' before
'Sub-Divisional Officer' against the order
passed in 'Mutation Case'.

In the instant case, the mutation
case was finally decided vide order dated
31.01.2023 and thereafter, an application
for recall of order dated 31.01.2023 was
preferred by the private opposite parties,
which was finally allowed vide order dated
25.04.2023. The order dated 25.04.2023
affects the valuable right of the present
petitioners as by this order the final order
dated 31.01.2023, which was favourable to
the petitioners, has been recalled.

Having considered the aforesaid
including
relevant
facts,
which
are
necessary to decide the issue involved, this
Court is of the view that the order dated
25.04.2023 affected the valuable rights of
the petitioners and accordingly, it can be
termed as "final order" (a term used under
Section 207) passed on the application
preferred by the private opposite parties
for recall of order dated 31.01.2023 passed
in 'mutation case/proceeding', which finds
place in Third Schedule of Code of 2006
and the same also provides the remedy of
'appeal' before 'Sub-Divisional Officer'
against the order passed in 'Mutation Case'
and accordingly, is appealable."

10. He further says that the Section
210 of the Code of 2006 is similar to
Section 219 of the Code of 2006, as Section
210 also provides revisional power to
Board of Revenue or Commissioner.

11. In continuation, learned counsel
for the petitioner further submitted that in
this case, the interim protection was
granted vide order dated 08.03.2022 which
was with regard to the protection of the
property in issue and vide the impugned
order dated 06.02.2023, the said interim
10 All. Hausila Prasad Vs. Addl. Commissioner (Admin.), Ayodhya Region, Ayodhya & Ors. 1147
protection has been recalled, as such, the
impugned order dated 06.02.2023 would
cause irreparable injury to the petitioner
and being so, the revision challenging the
order dated 06.02.2023 was maintainable
and further that the impugned order(s)
dated
06.02.2023
and
20.03.2023
if
allowed to stand, then irreparable injury
would be caused to the petitioner as in the
same it has been observed that the order
dated 06.02.2023 is interlocutory in nature.
In the aforesaid background of the
case, he lastly submitted that the
interference of this Court is required.

12. Considered the submission
made by the learned counsel for the
parties and perused the record.

13. For the purpose of disposal of
the present petition, this Court finds it
appropriate to reproduce Section 207
as also Section 210 of the Code of
2006.

14. Section 207 reads as under:-

First appeal.-(1) Any party
aggrieved by a final order or decree
passed in any suit, application or
proceeding specified in Column 2 of
the Third Schedule, may prefer a first
appeal to the Court or officer specified
against it in Column 5, where such order or
decree was passed by a Court or officer
specified against it in Column 3 thereof.

(2) A first appeal shall also lie
against an order of the nature specified-

(a) in Section 47 of the Code of
Civil Procedure, 1908; or

(b) in Section 104 of the said
Code; or

(c) in Order XLIII Rule 1 of the
First Schedule to the said

Code.

(3) The period of limitation for
filing a first appeal under this section shall
be thirty days from the date of the order or
decree appealed against."

15. Section 210 reads as under:-

Power to call for the records.-(1)
The Board or the Commissioner may call
for the record of any suit or proceeding
decided by any sub-ordinate Revenue Court
in which no appeal lies, 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 appears to have- (a) exercised a
jurisdiction not vested in it by law: or

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

(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.

(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.

[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
1148 INDIAN LAW REPORTS ALLAHABAD SERIES
of filing the application against the same
order to the other of them.]

(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.

16. A perusal of the Section 207 of
the Code of 2006 indicates that an appeal
would lie against the order of the nature
specified in Order 43 Rule 1 of the Code of
Civil Procedure, 1908 (in short "CPC").

17. Accordingly, it would be
appropriate to refer Order 43 Rule 1 of
CPC, which reads as under:-

"1. Appeal from orders-An appeal
shall lie from the following orders under
the provisions of Section 104, namely :--

(a) an order under Rule 10 of
Order VII returning a plaint to be presented
to the proper Court [except where the
procedure specified in Rule 10-A of Order
VII has been followed] ;

(b) [***]

(c) an order under Rule 9 of
Order IX rejecting an application (in a case
open to appeal) for an order to set aside the
dismissal of a suit ;

(d) an order under Rule 13 of
Order IX rejecting an application (in a case
open to appeal) for an order to set aside a
decree passed ex parte ;

(e) [***]

(f) an order under Rule 21 of
Order XI ;

(g) [***]

(h) [***]

(i) an order under Rule 34 of
Order XXI on an objection to the draft of a
document or of an endorsement;

(j) an order under Rule 72 or Rule
92 of Order XXI setting aside or refusing to
set aside a sale ;

[(ja)
an
order
rejecting
an
application made under sub- rule (1) of
Rule 106 of Order XXI, provided that an
order on the original application, that is to
say, the application referred to in sub-rule
(1) of Rule 105 of that Order is
appealable;]

(k) an order under Rule 9 of
Order XXII refusing to set aside the
abatement or dismissal of a suit ;

(l) an order under Rule 10 of
Order XXII giving or refusing to give leave
;

(m) [***]

(n) an order under Rule 2 of
Order XXV rejecting an application (in a
case open to appeal) for an order to set
aside the dismissal of a suit ;

[(na) an order under Rule 5 or
Rule 7 of Order XXXIII rejecting an
application for permission to sue as an
indigent person ;]

(o) [***]
10 All. M/s Gauri Shankar Singh Vs. State of U.P. & Ors..
1149

(p) orders in interpleader-suits
under Rule 3, Rule 4 or Rule 6 of Order
XXXV;

(q) an order under Rule 2, Rule 3 or
Rule 6 of Order XXXVIII ;

(r) an order under Rule 1, Rule 2, [Rule
2-A], Rule 4 or Rule 10 of Order XXXIX;

(s) an order under Rule 1 or Rule 4 of
Order XL

(t) an order of refusal under Rule 19 of
Order XLI to readmit, or under Rule 21 of Order
XLI to rehear, an appeal;

(u) an order under Rule 23 [or Rule 23A] of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate
Court ;

(v) [***]

(w) an order under Rule 4 of Order
XLVII granting an application for review."

18. The power to grant interim order or
temporary injunction is provided under the Order
39 of CPC. Under this Order, the Court can grant
the interim order/injunction and the Court can also
grant an ex-parte interim order/temporary
injunction and an order for injunction can be
discharge, varied or set aside by the Court.
Refereable Rules are Rule 1, Rule 2, Rule 3 and
Rule 4 of Order 39 of CPC. The Court under this
Order can also punish for disobedience/breach of
injunction as appears from Rule 2A. A conjoint
reading of Order 43 Rule 1(r) and referred Rules
of Order 39 of CPC, indicates that the order
passed under Rule 1, Rule 2, Rule 2 or Rule 4 of
Order 39 of CPC is appellable.

19. In the instant case, the interim order was
passed ex-parte on 08.03.2022 and an application
dated 21.03.2022 preferred by the opposite party
No.3, the same was recalled. As such, the order
dated 06.02.2023 would fall under Rule 4 of
Order 39 of the C.P.C. Thus, to the view of this
Court, the appeal under Section 207 of the Code
of 2006 would lie against the order dated
06.02.2023.

20. For the aforesaid reason, the order dated
20.03.2023 passed by the revisional authorityAdditional
Commissioner
(Administration),
Ayodhya Region, Ayodhya in a revision filed
under Section 210 of the Code of 2006 by the
petitioner, whereby the revision filed by the
petitioner was dismissed after observing that the
revision is not maintainable, is just and proper and
is not liable to be interfered with.

21. For the aforesaid reasons, this
Court is not inclined to entertain the
present petition challenging the impugned
orders dated 06.02.2023 and 20.03.2023.
Accordingly, it is disposed of with liberty
to the petitioner to file an appeal under
Section 207 of the Code of 2006
challenging the order dated 06.02.2023.
----------
(2023) 10 ILRA 1149
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2023

BEFORE

THE HON'BLE SALIL KUMAR RAI, J.
THE HON'BLE ARUN KUMAR SINGH
DESHWAL, J.

Writ-C No. 12041 of 2020

M/s Gauri Shankar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Amit Upadhyay, Sri Mukesh Prasad (Sr
.Adv.)