# Jagdish Prasad v. State of U.P. & Ors

- **Citation:** (2023) 3 ILRA 204
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-15
- **Case number:** Writ B No. 778 of 2022
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-prasad-v-state-of-u-p-ors-49947
- **Pages:** 9

## Headnote

U.P. Land Revenue Act,1901 - Section 219
- Revision - Board or the Commissioner
may call for the record of any case decided
or proceeding held by any revenue Court
subordinate to him for the purpose of
satisfying himself as to the legality or
propriety
of
the
order
passed
or
proceeding held - 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 - 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 - 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
-
revision
is
maintainable against the order rejecting
the application for amendment - In the
instant an application for amendment in a
mutation case u/s 34 of Act of 1901 to
incorporate
one
Gata
was
rejected,
against which a Revision u/s 219 of Act of
1901 was filed which was dismissed being
not maintainable It was held that that
revision
was
maintainable
-
matter
remanded back to the Revisional Authority
to decide the Revision, afresh, on merits
(Para 13, 14)

Allowed. (E-5)

List of Cases cited:

## Text

204 INDIAN LAW REPORTS ALLAHABAD SERIES
to the litigation preferably within a period
of six months from the date of production
of certified copy of this order, if there is no
other legal impediment in this regard.
While conducting the proceedings, the
Authority concerned is directed to avoid
unnecessary adjournments to either party.
----------
(2023) 3 ILRA 204
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 15.02.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 778 of 2022

Jagdish Prasad ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rakesh Kumar Maurya

Counsel for the Respondents:
C.S.C.

U.P. Land Revenue Act,1901 - Section 219
- Revision - Board or the Commissioner
may call for the record of any case decided
or proceeding held by any revenue Court
subordinate to him for the purpose of
satisfying himself as to the legality or
propriety
of
the
order
passed
or
proceeding held - 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 - 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 - 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
-
revision
is
maintainable against the order rejecting
the application for amendment - In the
instant an application for amendment in a
mutation case u/s 34 of Act of 1901 to
incorporate
one
Gata
was
rejected,
against which a Revision u/s 219 of Act of
1901 was filed which was dismissed being
not maintainable It was held that that
revision
was
maintainable
-
matter
remanded back to the Revisional Authority
to decide the Revision, afresh, on merits
(Para 13, 14)

Allowed. (E-5)

List of Cases cited:

1. Raja Ram & ors. Vs Additional Commissioner
Faizabad Division Faizabad & Others rendered in
Writ Petition 3 No.3301 (M/S) of 2006

2. Raj Shri Agarwal and Ors. vs. Sudheer Mohan
& ors. MANU/UP/2351/2022

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

1. Heard learned counsel for the
petitioner and Shri Hemant Kumar Pandey,
learned standing counsel for the Staterespondents.

2. In view of order proposed to be
passed, notice to opposite party no.4 is
dispensed with.

3. By means of the present Writ
Petition, the petitioner has challenged the
order dated 24.11.2020 passed in Revision
Case
No.1542
of
2020/Rai
Bareli,
Computerized Case No.R20201058001542
(Jagdish Prasad vs. Shiv Pyari) filed under
Section 219, U.P. Land Revenue Act, 1901
(hereinafter referred to as ' Act of 1901').
3 All. Jagdish Prasad Vs. State of U.P. & Ors.
205

4. The brief facts of the case to that
effect are that the petitioner preferred an
application for amendment before opposite
party no.3, Nayab Tehsildar, Dalmau,
District-Rai Bareli in a mutation case
which was filed based upon the Will dated
02.04.1991 under Section 34 of Act of 1901
registered
as
Case
No.49/SS/57158/72/102/2010
(Jagdish
Prasad
vs.
Jhoori[died]).
The
said
application for amendment, whereby, the
amendment was sought to incorporate Gata
No.265 Area 0.232 hectare, was rejected
vide order dated 20.02.2020.

5. Being aggrieved by the order dated
20.02.2020, the petitioner preferred a
Revision under Section 219 of Land
Revenue Act, 1901, which was dismissed
by the impugned order dated 24.11.2020
being not maintainable. The Revisional
Court observed that the order under
Revision is interlocutory in nature and as
such, the same is not maintainable.

6. Learned counsel for the petitioner
says that the Revisional Authority/Opposite
party
no.2-Board
of
Revenue
U.P.,
Lucknow has erred in exercising the
jurisdiction vested in it. Further, the order
rejecting
the
application
seeking
amendment in the plaint/application for
mutation would be covered under the
expression 'case decided' and being so,
taking note of the same and also the
language couched under Section 219 of
Act of 1901, the revision was maintainable
and ought to have been decided on the
merits
and
not
on
the
issue
of
maintainability. He further submitted that
the Gata No.265 Area 0.232 hectare
indicated in the application for amendment
in the plaint ought to have been allowed as
it
would
avoid
the
multiplicity
of
proceedings and would not change the
nature of the case, as such, also the
Revisional Authority should exercise its
jurisdiction vested in it by virtue of Section
219 of Act of 1901.

7. Learned Standing counsel, has
assisted this Court on the issue involved in
the present petition.

8. Considered the submissions made
by learned counsel for the parties and
perused the record.

9. In order to decide the issue involved
in the present petition this Court deems it
appropriate to reproduce Section 219 of Act
of 1901, which reads as under:-

"219. Revision. - (1) The Board
or the Commissioner or the Additional
Commissioner or the Collector or the
Record Officer, or the Settlement Officer,
may call for the record of any case decided
or proceeding held by any revenue Court
subordinate to him in which no appeal lies
or where an appeal lies but has not been
preferred, for the purpose of satisfying
himself as to the legality or propriety of the
order passed or proceeding held and if
such subordinate revenue Court appears to
have -

(a) exercised a jurisdiction not
vested in it bylaw, or

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

(c) acted in the exercise of
jurisdiction illegally or with material
irregularity,

The Board or the Commissioner
or the Additional Commissioner or the
Collector or the Record Officer, or the
Settlement Officer, as the case may be, pass
such order in the case as he thinks fit.

(2) If an application under this
section has been moved by any person
206 INDIAN LAW REPORTS ALLAHABAD SERIES
either
to
the
Board,
or
to
the
Commissioner,
or
to
the
Additional
Commissioner, or the Collector or to the
Record Officer or to the Settlement Officer,
no further application by the same person
shall be entertained by any other of them."

10. In the case of Raja Ram and Ors.
vs Additional Commissioner Faizabad
Division Faizabad & Others rendered in
Writ Petition No.3301 (M/S) of 2006, this
court after considering Section 219 of Act
of 1901 observed as under:-

"From the bare perusal of Section
219 of U.P. L. R. Act, the position which
emerges out is that "the Board or the
Commissioner
or
the
Additional
Commissioner or the Collector or the
Record Officer, or the Settlement Officer,
may call for the record of any case decided
or proceeding held by any revenue court
subordinate to him in which no appeal
lies."

So keeping in view the above said
facts, as per mandate of the Legislature as
provided under Section 219 of U.P. Z.A. &
L.R. Act any order passed in a proceeding
held by revenue court subordinate to the
opposite
party
no.1/Additional
Commissioner (Admn.), Lucknow Division,
Lucknow, revision is maintainable and if
the Legislature has legislate as a mandate
while framing Section 219 of the said Act,
the same should be implemented in its letter
and spirit because it is not the duty of the
Court either to enlarge the scope of the
legislation
or
the
intention
of
the
legislature when the language of the
provision is plain and unambiguous. The
Court cannot rewrite, recast or re-frame
the legislation for the very good reason that
it has no power to legislate. The power to
legislate has not been conferred on the
Courts. The Court cannot add words to a
statute or read words that are not there.

The Courts decide what the law is
and not what it should be. The Courts of
course adopt a construction which will
carry out the obvious intention of the
legislature but cannot legislate. But to
invoke judicial activism to set at naught
legislative judgment is sub serve of the
constitutional harmony and comity of
instrumentalities. (See Union of India and
another V. Deoki Nandan Agarwal, AIR
SC 96, All India Radio V Santosh Kumar
and another 71 (1998) 3 SCC 237, Sakshi
V. Union of India and others,(2004) 5
SCC 518, Pandian Chemicals Ltd. V. CIT
(2003) 5 SCC 590, Bhavnagar University
Vs. palitana Sugar Mills (P) and others,
AIR 2003 SC 511 and J.P. Bansal V. State
of Rajasthan, 2003) 5 SCC 134)

In Nasiruddin v. Sita Ram
Agarwal, (2003) 4 SCC 753, the Supreme
Court has held that the Court can iron cut
of the creases but cannot change the texture
of the fabric. It cannot enlarge the scope of
legislation or intention when the language
of provision is plain, unambiguous. It
cannot add or subtract words to statute or
read something into in which is not there. It
cannot rewrite or recast the legislation. "

11. It would be apt to refer that
remedy of revision is also available in the
Code of Civil Procedure (in short 'C.P.C.').
Section 115 of C.P.C. provide remedy of
revision. In the judgment dated 22.04.2022
passed in the case of Raj Shri Agarwal
and Ors. vs. Sudheer Mohan and Ors.
reported in MANU/UP/2351/2022, this
Court after considering Section 115 of
C.P.C. and various judgments on the scope
of the same has held that petition under
Article 227 of the Constitution of India is
not maintainable as remedy by way of
revision is available to the petitioner. The
3 All. Jagdish Prasad Vs. State of U.P. & Ors.
207
relevant part of the Judgment dated
25.04.2022 is reproduced hereunder:-

"8.For better appreciation of
facts, Section 115 defining revision in the
Code of Civil Procedure is reproduced
here-inbelow:-

"(1) The High Court may call for
the record of any case which has been
decided by any Court subordinate to such
High Court and in which no appeal lies
thereto, and if such subordinate Court
appears

(a)
to
have
exercised
a
jurisdiction not vested in it by law, or

(b) to have failed to exercise a
jurisdiction so vested, or

(c) to have acted in the exercise
of its jurisdiction illegally or with material
irregularity, the High Court may make such
order in the case as it thinks fit: [Provided
that the High Court shall not, under this
section, vary or reverse any order made, or
any order deciding an issue, in the course
of a suit or other proceeding, except where
the order, if it had been made in favour of
the party applying for revision, would have
finally disposed of the suit or other
proceedings.]

(2) The High Court shall not,
under this section, vary or reverse any
decree or order against which an appeal
lies either to the High Court or to any
Court subordinate thereto.

(3) A revision shall not operate as
a stay of suit or other proceeding before the
Court except where such suit or other
proceeding is stayed by the High Court."

9. It is also apt to reproduce
Section 115 of C.P.C. as applicable in the
State of U.P. which have been substituted
w.e.f. July, 1st, 2002.

"115. Revision (1) A superior
court may revise an order passed in a case
decided in an original suit or other
proceeding by a subordinate court where
no appeal lies against the order and 4
where the subordinate court has --

(a) exercised a jurisdiction not
vested in it by law ; or

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

(c) acted in exercise of its
jurisdiction illegally or with material
irregularity.

(2) A revision application under
sub-section (1), when filed in the High
Court, shall contain a certificate on the
first page of such application, below the
title of the case, to the effect that no
revision in the case lies to the district court
but lies only to the High Court either
because of valuation or because the order
sought to be revised was passed by the
district court.

(3)The superior court shall not,
under this section, very or reverse any
order made except where,--

(i) the order, if it had been made
in favour of the party applying for revision,
would have finally disposed of the suit or
other proceeding ; or (ii) the order, if
allowed to stand, would occasion a failure
of justice or cause irreparable injury to the
party against whom it is made."

10. An emphasis has been laid by
the learned counsel for the petitioners that
reading of proviso to Section 115 of C.P.C.
of Central Act clearly suggests that revision
is barred against any order of the trial
Court in a suit unless and until the
conditions enumerated in the proviso,
namely, where the order, if it had been
made in favour of the party applying for
revision, would have finally disposed of the
suit
or
other
proceedings
exist.
Accordingly, he submits that as the
rejection of application of amendment in
the plaint does not bring the suit to an end,
thus, the suit being not decided, the order
208 INDIAN LAW REPORTS ALLAHABAD SERIES
rejecting the amendment application would
not fall within the ambit of case decided.
Therefore, the revision is barred and
petition
under
Article
227
of
the
Constitution of India is maintainable.

11.
Now,
to
appreciate
the
aforesaid argument of learned counsel for
the petitioners, it would be apt to compare
two sections as incorporated in Central Act
of the C.P.C. and its applicability in the
State of U.P.

12. From the comparison of
proviso of Section 115 of C.P.C. in the
Central Act and Section 115 (3) (i) of
C.P.C. as applicable in the State of U.P., it
is manifest and clear that revision is
maintainable against any order if it had
been in favour of the party applying for
revision would have finally disposed of the
suit or other proceeding. Thus, it is
manifest that the proviso to Section 115 of
Central Act has been adopted by the State
of U.P. under sub-section (3) (i) of Section
115 of C.P.C. and are common, but by U.P.
Amendment, (ii) to Section 115 (3) has been
incorporated which provides that the
revision will also lie against any order
passed by the trial Court if the conditions
elucidated in Section 115 (3) (ii) of C.P.C.
exists, i.e., if the order is allowed to stand,
it would occasion a failure of justice or
cause irreparable injury to the party
against whom it is made. So in either of the
two contingencies, as referred in Section
115 (3) (i) & (ii) as applicable in U.P.,
revision is maintainable.

13. The learned counsel for the
petitioners
has
laid
emphasis
upon
paragraph no.32 of the judgment of Shiv
Shakti Cooperative House Society, Nagpur
(supra),
to
buttress
his
submission,
paragraph no.32 is reproduced hereinbelow:-

"32. A plain reading of Section
115 as it stands makes it clear that the
stress is on the question whether the order
in favour of the party applying for revision
would have given finality to suit or other
proceeding. If the answer is 'yes' then the
revision is maintainable. But on the
contrary, if the answer is 'no' then the
revision is not maintainable. Therefore, if
the impugned order is interim in nature or
does not finally decide the lis, the revision
will not be maintainable. The legislative
intent is crystal clear. Those orders, which
are interim in nature, cannot be the subject
matter of revision under Section 115. There
is marked distinction in the language of
Section 97(3) of the Old Amendment Act
and Section 32(2)(i) of the Amendment Act.
While in the former, there was clear
legislative intent to save applications
admitted or pending before the amendment
came into force. Such an intent is 6
significantly absent in Section 32(2)(i). The
amendment relates to procedures. No
person has a vested right in a course of
procedure. He has only the right of
proceeding in the manner prescribed. If by
a statutory change the mode of procedure is
altered,
the
parties
are
to
proceed
according to the altered mode, without
exception, unless there is a different
stipulation. "

14. In the opinion of the Court,
the said judgment is not applicable in the
facts of the present case, inasmuch as it
was a case dealing with an issue where
application under Order 39 Rule 1 C.P.C.
has been rejected, against which revision
was preferred and the Apex Court in those
facts and circumstances held that no
revision is maintainable against the order
passed by the trial Court, if the order is
interlocutory in nature.

15. So far as the judgment in the
case of Uttam Chand Kothari (supra) is
concerned, the said judgment is also not
applicable in the facts of the present case
3 All. Jagdish Prasad Vs. State of U.P. & Ors.
209
inasmuch as it was not considering the case
under Section 115 of C.P.C. as applicable
to the State of U.P. and further the
judgment and arguments raised by the
respondents which shall be dealt with in
later part of this judgment were also not
considered by the Gauhati High Court.

16. Similar is the case in the case
of Punjab Small Industries and Export
Corporation (supra).

17. Now coming to the judgment
of Five Judges Bench of this Court in the
case of Rama Shanker Tiwari Vs. Mahadeo
and others, reported in 1968 A.W.R. 103
(FB) relied upon by the learned counsel for
the respondents, the Full Bench considered
the meaning of the 'case decided' and held
that the order allowing or disallowing an
application for amendment in pleading is a
case decided and is revisable in this
Section, if the amendment sought has or is
likely to have direct bearing on the rights
and obligation of the parties. Paras 23 &
24 of the said 7 judgment is reproduced
here-in-below:-

"23. I am, therefore, of opinion
that every order granting or dismissing an
application for amendment of pleading will
not give rise to a case decided revisable
u/S. 115 of the Code. An order allowing or
disallowing an application for amendment
of pleading may however, give rise to a
case decided revisable under that Section if
the amendment sought has or is likely to
have a direct bearing on the rights and
obligations of the parties and affects or is
likely to affect the jurisdiction of the Court.
To this extent the decision in Mst. Suraj
Pali's case can, in may opinion, be said to
be no longer good law.

24. The opinion of the majority of
Judges constituting the Full Bench is that
an order passed u/O. VI R.17 of the CPC,
either allowing an amendment or refusing
to allow an amendment, is a "case decided"
within the meaning of that expression in
S.115, Code of Civil Procedure."

18. The
five
Judges
Bench
judgment concludes the controversy in the
instant case, since the order deciding the
amendment application would have a direct
bearing on the right of either parties, if it is
allowed or rejected. Thus, the decision on
an application under Order 6 Rule 17 of
C.P.C. would amount to a case decided and
revision would lie. The said finding is also
supported by the first line of Section 115 (1)
which states that " superior Court may
revise an order passed in a case decided in
an original suit",reading of said line
suggests that legislation has envisaged
cases where there may be circumstances
where an order passed in original suit may
amount to a case decided, though the suit
has not been decided, and revision is
maintainable against the said order.

19. Similarly, para-17 of the
judgment reported in 2006 (1) AWC 825
(LB) in the case of Sultan Leather Finishers
Pvt. Ltd. and others Vs. A.D.J. Court no.4,
Unnao and others being relevant in the
context of present case is reproduced
herein-below:-

"In
one
another
case
in
Sambhaunath Digambar Jain v. Mohanlal
and Ors. 2003 (9) SCC 219, where the
application under Order VI, Rule 17 and
Order VIII, Rule 6A of the Code of Civil
Procedure was rejected by the trial court
declining to permit the defendant to amend
the written statement and counter-claim, it
was held by Hon'ble Supreme Court that
such application can be challenged by
invoking revisional jurisdiction.

For convenience paras 3 and 4 of
the judgment of Hon'ble Supreme Court in
Sambhavnath's case (supra) is reproduced
as under :

"The respondents herein filed a
suit against the appellant for setting aside
210 INDIAN LAW REPORTS ALLAHABAD SERIES
the said order of the Registrar. On
13.9.1982, the appellant filed written
statement wherein an averment was made
that the portion of property where the girl's
school was running was the property of the
trust. It may be mentioned that the
Registrar did not include the said portion
of the school as trust property. On
15.9.1982,
the
appellant
filed
an
application under Order VI, Rule 17 and
Order VIII, Rule 6A of the Code of Civil
Procedure read with Section 151 of the
Code of Civil Procedure and sought to
incorporate in its counter-claim the said
school as a trust property. On 15.9.1982,
the appellant filed an application under
Order VI, Rule 17 and Order VIII, Rule 6A
of the Code of Civil Procedure read with
Section 151 of the Code of Civil Procedure
and sought to incorporate in its counterclaim the said school as a trust property by
way of an amendment to its written
statement.
The
said
application
was
rejected by the trial court and being
aggrieved by the said order, the appellant
filed a revision which was dismissed as not
maintainable. That is how the parties are
before us.

Learned counsel for the appellant
has urged that the order passed by the trial
court was revisable and view taken by the
High Court is erroneous. We are of the view
that the High Court for ends of justice
ought to have considered the application on
merit keeping in view Rule 6A of Order VIII
of the Code of Civil Procedure and in
accordance with the law. We, therefore,
hold that the above order rejecting the
application of the appellant by the trial
court was revisable. "

20. In this regard, it may also be
apt to refer to paragraph-8 of the judgment
of this Court reported in 2006 (3) AWC
2182, Mukhtar Ahmad vs. Sirajul Haw and
Others, wherein this Court has quashed the
order of revisional Court rejecting the
revisioin against the order passed in the
amendment application. Paragraph-8 of
the said judgment is reproduced hereinbelow:-

"8. In view of the aforesaid, the
District Judge was not correct in holding
that a revision against an order rejecting
the
amendment
application
is
not
maintainable. The District Judge was
under law obliged to see as to whether the
order passed by the court below rejecting
the amendment application amounts to case
decided or as to whether in the facts of the
case revisional authority should vary or
reverse the order passed by the court below
in view of sub-section (3) of Section 115 of
the Civil Procedure Code. It is needless to
point out that this Court in the Judgment in
Smt. Pushpa alias Pooja v. State of U.P.
and Ors. 2005 (3) AWC 2587:AIR 2005 All
187, has taken note of the judgment in the
case of Shiv Shakti Co-operative Housing
Society, Nagpur v. Swaraj Developers, and
has explained the legal proposition laid
down by the Hon'ble Supreme Court in the
case of Shiv Shakti (supra) in paragraphs
15 and 16 of the said Judgment, which may
be reproduced here in below:

"15. The judgment of the Apex
Court relied by the counsel for the
petitioner in Shiv Shakti Cooperative
Housing
Society,
Nagpur
v.
Swaraj
Developers and Ors. (supra) lays down that
the revision is not maintainable against an
interlocutory or interim order. The Apex
Court while considering provisions of
Section 115 of the Code of Civil Procedure,
made following observation in paragraph
32: .........(at page 2442 of AIR).

"32. A plain reading of Section
115, as it stands makes it clear that the
stress is on the question whether the order
in favour of the party applying for revision
would have given finality to suit or other
3 All. Jagdish Prasad Vs. State of U.P. & Ors.
211
proceeding. If the answer is "yes" then the
revision is maintainable. But on the
contrary, if the answer is "no" then the
revision is not^ maintainable. Therefore, if
the impugned order is of interim nature or
does not finally decide the lis, the revision
will not be maintainable. The legislative
intent is crystal clear. Those orders, which
are interim in nature, cannot be the subjectmatter of revision under Section 115."

16. As noted above, the order
passed under Section 24 disposed of
finally the issue of interim maintenance
to
a
spouse
during
pendency
of
proceedings. After passing the order
under Section 24 of the Act nothing more
is required to be done with regard to
question of interim maintenance during
pendency of proceedings and the fact is
that the order passed under Section 24
finally disposes the application for
interim maintenance; hence as laid down
by the Apex Court in above quoted
paragraph
the
revision
shall
be
maintainable against an order under
Section 24 of Hindu Marriage Act, 1955."

21. Section 115 (iii) of C.P.C. as
applicable in Uttar Pradesh clearly states
that the order, if allowed to stand, results in
failure of justice or causes irreparable
injury to the party against 10 whom it is
made, the revision under Section 115 of
C.P.C as applicable in the State of U.P. is
maintainable.

22. Viewed from this angle, if any
order illegally passed by the Court below
on any application is allowed to stand
affecting rights of parties, it is obvious that
it would cause failure of justice or cause
irreparable injury to the party against
whom it is made, therefore, if said
condition is present, the revision against
any order passed by the Court below vide
Section 115 (3) (ii) of C.P.C. as applicable
in U.P. would lie."

12. From the aforesaid observation(s)
of the Co-ordinate Bench of this Court, it is
apparent that the order allowing or
rejecting
the
application
seeking
amendment
would
come
within
the
purview of expression "case decided", if
the amendment sought has or is likely to
have direct bearing on the rights and
obligations of the parties and affects or is
likely to affect the jurisdiction of the Court,
even if an order is passed under the
proceedings initiated under the Act of 1901.
The expression "case decided" finds place
in Section 219 of the Act of 1901. As such,
revision against an order passed on
application seeking amendment would be
maintainable.

13. 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.

14. For the foregoing reasons, this
Court is of the view that revision was
212 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable against the order dated
20.02.2020 passed by Nayab Tehsildar,
rejecting the application for amendment,
as such, the order dated 24.11.2020 is
liable to be interfered with. Accordingly,
the order dated 24.11.2020 is set aside.
The matter is remanded back to the
Revisional Authority
to
decide
the
Revision, afresh, on merits, after giving
proper opportunity of hearing to opposite
party no.4-Smt. Shiv Pyari wife of late
Gokaran R/o Village-Purey Valli H/o
Murshidabad
presently
residing
at
Krishna Nagar, Murari ka Bagh, Pargana
& Tehsil Dalmau, District- Rai Bareli, as
early as possible, say within a period of
six months from the date of production of
certified copy of this order, if there is no
other legal impediment in this regard,
without giving unnecessary adjournments
for the purpose of concluding the
proceedings, within the stipulated time.

15. In view of the above, the present
writ petition stands allowed.
----------
(2023) 3 ILRA 212
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 23043 of 2020

Ghuru & Ors. ...Petitioners
Versus
Addl. District Magistrate Finance/Revenue
Kheri & Ors. ...Respondents

Counsel for the Petitioners:
Ajey Singh

Counsel for the Respondents:
C.S.C.
A. Civil Law - Will - Indian Succession Act,
1925 - Section 63 - Indian Evidence Act,
1872 - Sections 68, 69, 90 & 90-A - Will -
A Will executed u/s 63 of the Act, 1925
has to be proved, that it was executed, at
least by one of the attesting witnesses u/s
68 - where attesting witnesses of the Will
have died or not available to prove the
execution of the Will, then the alleged Will
is
required
to
be
proved
by
the
handwriting of one of the witnesses of
attesting witnesses and the executant u/s
69 - Onus - onus of proving the Will is on
the propounder - in the absence of
suspicious circumstances surrounding the
execution
of
the
Will,
proof
of
testamentary capacity and signature of
the testator is sufficient to discharge the
onus
-
Where,
there
are
suspicious
circumstances, the onus would be on the
propounder
to
explain
them
to
the
satisfaction of the Court before the Will
could be accepted as genuine - where the
execution
of
a
will
is
shrouded
in
suspicion, it is a matter essentially of the
judicial conscience of the court and the
party which sets up the will has to offer
cogent and convincing explanation of the
suspicious circumstances surrounding the
will (Para 19, 24, 25, 28)

B. Civil Law - Will - In the instant case,
petitioner
stated
that
Will
dated
26.06.1986 was duly proved by the
witnesses namely Bachchu Lal and Bechan
Lal before the Consolidation Authorities -
Bachchu Lal stated that one Narmatta
brought the Will, before him and after
considering the thump impression of
testator of the Will namely Kishun and
signature of Jagganath (Up-Pradhan) and
thump impression of Tulsiram (Panch), he
put his signature over the Will - Held -
Bachchu Lal cannot be considered as an
atttesting witness of the Will - Bechan
Lal's testimony was found unreliable due
to inconsistencies, such as conflicting
times for when the Will was written and
discrepancies about who purchased the
stamp paper - High Court held that the
petitioners failed to prove the Will before
the Consolidation Officer, as such, their
claim based upon the Will was not