# Paltoo Ram Yadav v. State of U.P. & Ors

- **Citation:** (2023) 9 ILRA 495
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-18
- **Case number:** Writ-C No. 10192 of 2023
- **Bench:** Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/paltoo-ram-yadav-v-state-of-u-p-ors-50831
- **Pages:** 11

## Headnote

Civil Law - U.P. Revenue Code, 2006 -
Sections 207, 209 & 210 - Suit for division
of holding - Appeal against final decree
allowed
- Case remanded for fresh
decision - Whether remedy of revision lies
under Section 210 - Scope and meaning of
"proceeding decided" -
Held:
Order of remand passed by appellate authority
containing observations on merits and findings
regarding rights of parties cannot be treated as
'remand simpliciter' or an interlocutory order -
Such order held to be a "proceeding decided"
under Section 210 - Revision maintainable -
Writ petition not maintainable in view of
alternative efficacious statutory remedy.

Held: The remand order passed by the
Commissioner
while
deciding
three
appeals under Section 207 of the U.P.
Revenue Code, 2006, contained a detailed
consideration on merits, including findings
on the nature of property and possession
based on registered sale deeds, and
directions for fresh adjudication after
affording opportunity to the parties -
Such an order cannot be treated as a
'remand simpliciter' - The expression
'proceeding decided' under Section 210
includes
such
appellate
orders
-
Therefore,
remedy
of
revision
under
Section
210
is
available
-
Petition
dismissed on ground of availability of
alternative remedy.

Petition Dismissed.

Case Law Discussed:

## Text

9 All. Paltoo Ram Yadav Vs. State of U.P. & Ors.
495
(2023) 9 ILRA 495
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.08.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 10192 of 2023

Paltoo Ram Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Hemant Kumar Rai, Sri Arvind Kumar Rai, Sri
S.B. Singh

Counsel for the Respondents:
C.S.C., Sri Mayank Krishna S Chandel, Sri Ram
Niwas Singh, Sri Rameshwar Prasad Shukla, Sri
Vinod Kumar Chandel

Civil Law - U.P. Revenue Code, 2006 -
Sections 207, 209 & 210 - Suit for division
of holding - Appeal against final decree
allowed
- Case remanded for fresh
decision - Whether remedy of revision lies
under Section 210 - Scope and meaning of
"proceeding decided" -
Held:
Order of remand passed by appellate authority
containing observations on merits and findings
regarding rights of parties cannot be treated as
'remand simpliciter' or an interlocutory order -
Such order held to be a "proceeding decided"
under Section 210 - Revision maintainable -
Writ petition not maintainable in view of
alternative efficacious statutory remedy.

Held: The remand order passed by the
Commissioner
while
deciding
three
appeals under Section 207 of the U.P.
Revenue Code, 2006, contained a detailed
consideration on merits, including findings
on the nature of property and possession
based on registered sale deeds, and
directions for fresh adjudication after
affording opportunity to the parties -
Such an order cannot be treated as a
'remand simpliciter' - The expression
'proceeding decided' under Section 210
includes
such
appellate
orders
-
Therefore,
remedy
of
revision
under
Section
210
is
available
-
Petition
dismissed on ground of availability of
alternative remedy.

Petition Dismissed.

Case Law Discussed:

1. Ram Bhajan & ors. Vs Deputy Director of
Consolidation, Allahabad & anr.

2. Mahendra Singh & ors. Vs Board of Revenue,
U.P. & ors.

3. Jhinka Devi Vs St. of U.P. & ors.

4. Deena Nath & ors. Vs Deputy Director of
Consolidation

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Sri S.B. Singh, along with
Sri Hemant Kumar Rai, learned counsel for
the petitioner, Sri Kunal Ravi Singh,
learned Chief Standing Counsel along with
Sri Abhishek Shukla, learned Additional
Chief Standing Counsel appearing for the
State-respondents and also Sri Vinod
Kumar Chandel, learned counsel appearing
for the respondent Nos. 4 and 5.

2. The present petition seeks to raise
an issue with regard to availability of the
statutory remedy of a revision under
Section 210 of the U.P. Revenue Code,
2006 against an order of remand passed in
an appeal.

3. The admitted facts between the
parties are that land bearing plot no. 89
measuring an area of 0.150 hectares situate
at Village Harakhpur, Pargana and Tehsil
Sagri, District Azamgarh was jointly held
496 INDIAN LAW REPORTS ALLAHABAD SERIES
by two real brothers namely Rajdeo and
Hardeo having equal share. One half of the
undivided share of the aforestated plot was
purchased by the respondent no.6 and the
predecessor-in-interest of the respondent
nos. 4 and 5 by means of a registered sale
deed dated 20.05.2003 executed by one of
the
co-owners
namely,
Hardeo.
The
remaining half of the share was purchased
by the petitioner on 01.10.2004 through a
registered sale deed from the other coowner namely Rajdeo. The names of the
petitioners
as
well
as
contesting
respondents were mutated in the revenue
records as co-sharers of the plot in
question.

4. The petitioner filed a suit under
Section 116 of the Uttar Pradesh Revenue
Code, 20061 for division of the holding in
the Court of Sub-Divisional Officer, Sagri,
Azamgarh.

5. The private respondents, though
parties in the suit, did not file their written
statements, and a preliminary decree was
passed on 23.01.2019.

6. Thereafter, a Kurra report and map
showing the proportionate shares of the
parties were prepared by the concerned
Lekhpal,
which
were
consequently
affirmed and an order dated 26.10.2019
was passed for making the final decree.

7. The respondent no. 6, at this stage,
filed
a
restoration
application
dated
13.12.2019 seeking recall of the order
dated 26.10.2019. It was contended that the
concerned respondent got no notice with
regard to passing of the order in the suit for
the division of holdings.

8. The restoration application filed by
respondent no. 6 was rejected by the SubDivisional Magistrate in terms of an order
dated 27.12.2021. The Court concerned,
while rejecting the restoration application,
also made certain observations on merits to
the effect that in a joint holding in the
absence of any partition, the sale deed
could not be held valid and no claim for
division of holding could be made on the
basis thereof.

9. Assailing the aforestated final order
dated 26.10.2019 passed in the suit under
Section 116, respondent no. 6 preferred an
appeal under Section 207 of the Revenue
Code. The respondent no. 5 also preferred
an appeal against the said order.

10. The respondent no. 6 further
raised a challenge to the order dated
27.12.2021,
whereby
the
restoration
application filed by the said respondent had
been rejected, in an appeal under Section
207 of the U.P. Revenue Code, 2006.

11. The aforestated three appeals were
heard and decided by a common order
dated 18.11.2022, passed by respondent
no.2/Commissioner
Azamgarh
Region,
Azamgarh. The respondent no.2 while
exercising its appellate powers took notice
of the fact that the Court below had
rejected the restoration application filed by
respondent no. 6 by making an observation
on merits. In this regard, the appellate
Court took notice of the fact that the
registered sale deed which was available on
the record of the case was indicative of the
fact that the plot in question was not the
ancestral property of the parties but the
same had been purchased by both the
parties from the original tenure holder on
the basis of registered sale deeds executed
in the years 2003 and 2004, respectively,
showing separate boundaries. It was also
noticed that on the basis of aforestated sale
9 All. Paltoo Ram Yadav Vs. State of U.P. & Ors.
497
deeds the parties concerned had got their
names mutated in the revenue records and
were in possession of their respective
portions.

12. The appellate Court also noticed
that the suit for division of holding was
instituted after about 14 years from the date
of execution of the sale deed. Taking into
consideration the fact that it was only on
the basis of the boundaries described in the
registered sale deed that the vendee could
claim a right of possession and it was not a
case where the parties were claiming
division on the basis of their respective
shares in an ancestral property, it was held
that the observations made by the Court
below in so far as merits of the case were
concerned, were legally untenable. In
addition, since the Court below had decreed
the
suit
ex-parte
without
granting
opportunity of hearing and of adducing
evidence to the appellant (respondent no. 6
herein),
and
thereafter
rejected
the
restoration application cursorily in terms of
the
order
dated
27.12.2021,
it
had
committed a manifest error.

13. The appellate Court, having come
to the aforestated conclusion, held that it
would be appropriate for the Court below
to pass a fresh order after giving due
opportunity to the parties concerned to
adduce evidence and to present their case
on merits. Accordingly, the orders dated
26.10.2019 and 27.12.2019 have been set
aside and the case has been remanded to
the Court below for grant of an opportunity
of hearing and for adducing evidence and
for deciding the case afresh on the basis of
merits.

14. An objection has been raised by
the counsel appearing for the Staterespondents and also the counsel appearing
for the private respondents with regard to
the entertainability of the present writ
petition, which seeks to assail the order
dated 18.11.2022 passed in the appeals by
the respondent no. 2, by pointing out that
the petitioner would have an efficacious
statutory remedy of filing a revision against
the said order, before the Board of
Revenue.

15. Counsel for the petitioner has
sought to refute the aforestated preliminary
objection
raised
on
behalf
of
the
respondents by submitting that since the
appellate Court had remanded the matter to
the Court below without any observation
on merits of the case and without setting
aside the findings recorded by the Court
below, it was a case of a 'remand
simpliciter' and, therefore, the remedy of
the revision would not be available. In this
regard, reliance was placed on a decision of
this Court in Ram Bhajan and Others vs.
Deputy
Director
of
Consolidation,
Allahabad and another1 to submit that an
order of a 'remand simpliciter' would be of
an interlocutory nature, and a revision
against the said order would not be
maintainable.

16. Counsel appearing for the private
respondents
has
controverted
the
aforestated
submissions
by
drawing
attention of the Court to the observations
made by the appellate Court on merits of
the case, to point out that the Court while
deciding the appeal has considered the
reasoning assigned by the Court below and
remanded the matter with observations on
merits; therefore, the order cannot be said
to be a 'remand simpliciter', which can be
held to be of an interlocutory nature and
not amenable to the remedy of statutory
revision. Learned counsel has referred to
the decisions of this Court rendered in
498 INDIAN LAW REPORTS ALLAHABAD SERIES
Mahendra Singh and Others Vs. Board
of Revenue U.P. and Others2 and Jhinka
Devi Vs. State of U.P. and others3, on the
scope of the revisional powers under the
Revenue Code.

17. Learned Chief Standing Counsel
appearing for the State-respondents has
also referred to the order passed by the
respondent no. 2 while deciding the appeal,
to point out that the appellate order
contains a detailed consideration of the
case on its merits and the remand having
been made with specific directions, the said
order can in no manner to held to be a
'remand simpliciter' and therefore not
amenable to the remedy of a revision. It is
submitted that the appellate court has
recorded a categorical finding that the land
is not ancestral in nature and that the
parties were in possession according to the
boundaries described in their respective
sale
deeds
and
would
continue
in
possession in accordance with the same.

18. It is further pointed out that the
decision in the case of Ram Bhajan
(supra), which is sought to be relied upon
on behalf of the petitioner, cannot be held
to be good law in the light of a subsequent
Division Bench decision of this Court in
Deena Nath and Ors. vs. Deputy Director
of Consolidation2, wherein while deciding
a reference, on the point, it was held that
the order of the Settlement Officer of
Consolidation, which had finally decided
the appeal by setting aside the order of the
Consolidation Officer and remanding the
matter to the Consolidation Officer, was an
order finally deciding the appeal and thus
could not be termed to be an interlocutory
order.

19. Learned State Counsel submits
that the remand having been made with
findings regarding rights of the parties, the
order would be appealable as per Schedule
III and the writ petition would not be
maintainable. Alternatively, it is submitted
that even in case the remedy of appeal is
held to be not available, the remedy of
revision under Section 210 of the Code can
be availed of.

20. In order to appreciate the rival
contentions,
the
relevant
statutory
provisions would be required to be
adverted to, which are as follows:

"Section 116. Suit for division of
holding.-(1) A Bhumidhar may sue for the
division of the holding of which he is a cosharer.

[(2) In every such suit, the Court may
also divide the trees, wells and other
improvements existing on such holding but
where such division is not possible, the
trees, wells
and other improvements
aforesaid and valuation thereof shall be
divided and adjusted in the manner
prescribed.]

(3) One suit may be instituted for the
division of more holdings than one where
all the parties to the suit other than the
Gram Panchayat are, jointly interested in
each of the holdings.

(4) To every suit under this section, the
Gram Panchayat concerned shall be made a
party.

Section 207. 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 4, 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-
9 All. Paltoo Ram Yadav Vs. State of U.P. & Ors.
499

(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.

Section 209. Bar against certain
appeals.-Notwithstanding
anything
contained in Sections 207 and 208, no
appeal shall lie against any order or decree-

(a) made under Chapter XI of this
Code;

(b) granting or rejecting an application
for condonation of delay under Section 5 of
the Limitation Act, 1963;

(c)
rejecting
an
application
for
revision;

(d) granting or rejection an application
for stay;

(e) remanding the case to any
subordinate Court;

(f) where such order or decree is of an
interim nature;

(g) passed by Court or officer with the
consent of parties; or

(h) where order has been passed exparte or by default:

Provided that any party aggrieved by
order passed ex-parte or by default, may
move application for setting aside such
order within a period of thirty days from
the date of the order:

Provided further that no such order
shall be reversed or altered without
previously summoning the party in whose
favour order has been passed to appear and
be heard in support of it.

Section 210. 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
subordinate 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 of
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
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."

21. For ease of reference, the relevant
rules under the U.P. Revenue Code Rules
2016, corresponding to the statutory
provisions relating to division of holdings,
are also being extracted below:

"Rule 108. Suit for division for
several holdings (Section 116).- Where the
suit relates to the division of more than one
holding, the particulars specified in Rule
500 INDIAN LAW REPORTS ALLAHABAD SERIES
107 shall be mentioned in the plaint in
respect of all such holdings.

Rule 109. Preliminary and Final
decrees (Section 117).- (1) If the plaint
referred to in Rule 107 or Rule 108 is in
order, it shall be registered as a suit and the
defendants shall be called upon to file their
written statements. The suit shall then be
decided according to the provisions of the
Code of Civil Procedure, 1908.

(2) Before making a division the Court
shall-

(a) determine separately the share of
the plaintiff and each of the other co-tenure
holders;

(b) record which, if any, of the cotenure holders wish to remain joint; and

(c) make valuation of the holding (or
holdings) in accordance with the circle rate
fixed by the Collector applicable to each
plot in the holding.

(3) If the suit is decreed, the Court
shall pass a preliminary decree declaring
the share of the plaintiff.

(4)
After
the
preparation
of
preliminary decree the Sub Divisional
Officer shall get the Kurra prepared
through the Lekhpal.

(5) The Lekhpal shall submit the
Kurra report within a period of one month
from the date of receiving the order in this
regard and at the time of preparation of
Kurra he shall observe the following
principles-

(a) the plot or plots shall be allotted to
each party in proportionate to his share in
the holding;

(b) the portion allotted to each party
shall be as compact as possible;

(c) as far as possible no party shall be
given all the inferior or all the superior
classes of land;

(d) as far as possible existing fields
shall not be split up;

(e) Plots which are in the separate
possession of a tenure holder shall, as far as
possible, be allotted to such tenure holder if
they are not in access of his share;

(f) If the plot or any part thereof is of
commercial value or is adjacent to road,
abadi or any other land of commercial
value, the same shall be allotted to each
tenure holder proportionately and in the
case of second condition the same shall be
allotted proportionately adjacent to road,
abadi or other land of commercial value;
and

(g) If the co-tenure holders are in
separate possession on the basis of mutual
consent or family settlement, the Kurra
shall, as far as possible, be fixed
accordingly.

(6) When the report regarding Kurra is
submitted by the Lekhpal, the objection
shall be invited thereon and thereafter the
appropriate order shall be passed by the
Sub-Divisional
Officer
after
affording
opportunity of hearing to the parties and
considering the objection, if any, filed
against the report submitted by the
Lekhpal.

(7) If the report and Kurra is
confirmed by the Sub-Divisional Officer,
the final decree shall follow it. ]

(8) At the stage of the final decree, the
Court shall:

(a) Separate the share of the plaintiff
from that of the defendant by metes and
bounds.

(b) Place on record a map showing in
different colours the properties given to
plaintiff as distinct from those given to the
defendant.

(c) Apportion the land revenue payable
by the parties.

(d) Direct the record of rights and map
to be corrected accordingly.

(9) If, for adjusting the equities
between
the
parties,
payment
of
9 All. Paltoo Ram Yadav Vs. State of U.P. & Ors.
501
compensation regarding trees, wells or
other improvements becomes necessary, the
Revenue Court concerned may also pass
necessary orders at the stage of final
decree.

(10) The Sub-Divisional Officer shall
make an endeavour to decide the suit
within the period of six months and if the
suit is not decided within such period, the
reason shall be recorded."

22. The facts of the case regarding
which there appears to be no dispute
between the contesting parties is that
one-half of the undivided share of a plot
of land jointly held by two brothers,
was purchased by respondent no. 6 by
means
of
a
registered
sale-deed
executed by one of the co-owners. The
remaining
half
of
the
share
was
purchased by the petitioner through
another sale deed by the other cosharer. The petitioners as well as the
contesting respondents got their names
mutated in the revenue records as cosharers of the plot in question. ]

23.

Thereafter,
the
petitioner
preferred a suit under Section 116 of the
Revenue Code for division of the holding
in the Court of the Sub-Divisional
Officer. The private respondents, though
parties in the suit did not file their written
statements, and a preliminary decree was
made in terms of the order dated
23.01.2019, and thereafter, the suit was
finally decreed by an order dated
26.10.2019. A restoration application
dated 13.12.2019, filed by respondent no.
6 seeking recall of the aforestated order,
was rejected by the Sub-Divisional
Magistrate by an order dated 27.12.2021.
The Court while rejecting the restoration
application,
also
made
certain
observations on merits.

24. The aforestated final order dated
26.10.2019, in terms of which the suit had
been decreed, was subjected to an appeal
filed by respondent no. 6 under Section 207
of the Revenue Code. An appeal against the
said order was also filed by respondent no.
5. The respondent no. 6 also preferred an
appeal under Section 207 of the Revenue
Code against the order dated 27.12.2021 in
terms of which the restoration application
filed by the said respondent had been
rejected.

25. The three appeals were heard and
decided
by
a
common order
dated
18.11.2022 passed by the Commissioner,
Azamgarh. The orders dated 26.10.2019
and 27.12.2019 were set aside and the case
was remanded to the Court below to grant
an opportunity of hearing to the parties
concerned to decide the case afresh on
merits.

26. It is against the aforestated order
dated
18.11.2022
passed
by
the
Commissioner that the present petition has
been filed, wherein an objection has been
raised on behalf of the private respondents
with regard to entertainability of the
petition by pointing out that against the
order passed in appeal, the petitioner would
have an efficacious statutory remedy of
filing a revision.

27. The argument sought to be raised
on behalf of the petitioner to refute the
aforestated preliminary objection is that the
remand order is without any observation on
merits, and therefore, the same is a 'remand
simpliciter', and the order being of an
interlocutory nature, a revision thereagainst
would not be maintainable.

28. In order to test the aforesaid
argument the order passed in appeal would
502 INDIAN LAW REPORTS ALLAHABAD SERIES
be required to be examined. The order
passed
by
the
Commissioner
while
exercising appellate powers takes notice of
the fact that the court below has rejected
the
restoration
application
filed
by
respondent no. 6 by making observations
on merits. The appellate court has also
taken notice of the fact that the registered
sale deed which was available on the record
of the case was indicative of the fact that
the land in question was not the ancestral
property of the parties, but the same had
been purchased by both the parties from the
original tenure holder by means of
registered sale deeds, showing separate
boundaries. The appellate court, after
discussing the findings returned by the
court below, has held the same to be legally
unsustainable. Further, since the court
below had decreed the suit ex parte without
granting
opportunity
of
hearing
and
adducing evidence to the parties, the case
has been remanded with a direction to the
court below to pass a fresh order after
giving due opportunity of hearing to the
parties concerned. The remand order passed
by the Commissioner, thus, containing a
detailed consideration on merits of the case
and thereafter recording a conclusion that
the findings returned by the court below,
were legally unsustainable, cannot be held
to be 'remand simpliciter'.

29. The decision in the case of Ram
Bhajan and Others (supra), which is
sought to be relied upon on behalf of the
petitioner, thus, would not be applicable in
the facts of the case. Moreover, the said
judgment cannot be held to be good law in
light of the subsequent Division Bench
decision of this Court in Deena Nath and
Ors. (supra), wherein while deciding the
reference on the point, it was held that an
order passed in appeal under Section 11 of
the U.P. Consolidation of Holdings Act,
1953,
by
the
Settlement
Officer
(Consolidation) deciding the appeal finally
by
setting
aside
the
order
of
the
Consolidation Officer and remanding the
matter would not be an interlocutory order
and the revision against the said order
would not be barred.

30. The order of remand, in the
present case, in terms of which the case has
been
remanded
after
making
certain
observations on the merits of the case, and
issuing directions to the court below to
grant the parties opportunity of hearing and
of adducing evidence, cannot be held to be
a 'remand simpliciter' or an order of an
'interlocutory nature'. This is more so since
the order passed by the Commissioner has a
finality attached to it in the sense that it has
the effect of disposing of the appeal.

31. The order passed by the
Commissioner while exercising powers of
the first Appellate Court under Section 207
of the Revenue Code, having resulted in a
remand, the bar contained under Clause (e)
of Section 209 would be attracted and the
remedy of a further statutory appeal would
not be available.

32. The bar under Section 209 against
filing of an appeal, having been attracted, it
would be required to be seen as to whether
the revisional jurisdiction under Section
210, can be invoked against the order
passed by the Commissioner in appeal. The
language of Section 210 indicates that the
powers of revision may be exercised in
respect of any order passed in a suit or
'proceeding decided'.

33. The word 'proceeding' though not
defined under the Revenue Code, when
applied to a suit, is generally used, to
9 All. Paltoo Ram Yadav Vs. State of U.P. & Ors.
503
express the separate steps taken in the
course of a suit.

34. The word 'proceeding' has been
defined
in
the
Webster's
Third
International Dictionary3 as meaning a
particular step or series of steps adopted for
doing or accomplishing something.

35. Black's Law Dictionary4 defines
'proceedings' as the regular and orderly
progression of a lawsuit, including all acts
and
events
between
the
time
of
commencement and the entry of judgment.

36.

Shorter
Oxford
English
Dictionary5 defines the word 'proceeding'
as 'the fact or manner of taking legal action;
a legal action; an act done by authority of a
court of law; a step taken by a party in a
case'.

37. The Law of Pleading Under the
Codes of Civil Procedure6 describes
'proceeding' in the following terms:

"'Proceeding' is a word much used to
express the business done in Courts. A
proceeding in court is an act done by the
authority or direction of the court, express
or implied. It is more comprehensive than
the word 'action,' but it may include in its
general sense all the steps taken or
measures adopted in the prosecution or
defence of an action, including the
pleadings and judgment. As applied to
actions, the term 'proceeding' may include-
(1) the institution of the action; (2) the
appearance of the defendant; (3) all
ancillary or provisional steps, such as
arrest, attachment of property, garnishment,
injunction, writ of ne exeat; (4) the
pleadings; (5) the taking of testimony
before trial; (6) all motions made in
direction; (7) the trial; (8) the judgment; (9)
the
execution;
(10)
proceedings
supplementary to execution, in court
practice; (11) the taking of the appeal or
writ of error; (12) the remittitur, or sending
back of the record to the lower Court from
the appellate or reviewing Court; (13) the
enforcement of the judgment, or a new
trial, as may be directed by the Court of last
resort."

38. The word 'proceeding' has been
described
in
Words
and
Phrases,
Permanent Edition7, as a comprehensive
term meaning a prescribed course of action
for enforcing a legal right and hence
embracing the requisite steps by which a
judicial action is invoked.

39. The foregoing discussion is
indicative that the word 'proceeding'
ordinarily relates to the modes in which
judicial transactions are conducted. The
word
has
to
be
understood
as
a
comprehensive term and would generally
mean a prescribed course of action for
enforcing a legal right. It would also be
held to embrace the requisite steps by
which a judicial action is invoked and
would include the form and the manner of
conducting judicial business before a Court
of law. The word 'proceeding' would thus
be seen to be wider than the word 'case'.

40. Section 210 of the Revenue Code
which provides the remedy of a revision
empowers the Board or the Commissioner
to call for the record of 'any suit or
proceeding decided' by any subordinate
Revenue Court in which no appeal lies for
the purpose of satisfying itself as to the
legality or propriety of any order passed in
suit or proceeding.

41. A plain reading of Section 210 of
the Revenue Code indicates that a revision
504 INDIAN LAW REPORTS ALLAHABAD SERIES
would be entertainable on the cumulative
satisfaction of the following circumstances:

I.
(i) impugned order amounts to a
'suit or proceeding decided';

(ii) such an order must have been
passed by any Revenue Court subordinate
to the Board of Revenue or Commissioner;

(iii) such an order must not be
appealable.

II. there must be an assertion with
regard to jurisdictional error by the
subordinate revenue court, i.e. to say:

(i) exercise of jurisdiction not
vested in it by law, or

(ii)
failure
to
exercise
a
jurisdiction so vested, or

(iii) acting in the exercise of such
jurisdiction illegally or with material
irregularity.

42. The section comprises two parts,
the first prescribes the condition under
which jurisdiction of the Board or the
Commissioner arises, i.e. there is a 'suit or
proceeding decided' by a subordinate
Revenue Court in which no appeal lies, the
second sets out the circumstances in which
the jurisdiction may be exercised.

43.

The
question
regarding
maintainability of the revision by the Board
or the Commissioner would be distinct and
independent of the question as to when the
Board or the Commissioner would, in
exercise of revisional jurisdiction, interfere
with the orders passed by the courts
subordinate thereto. The former concerns
the power to call for records of courts
subordinate to it by the Board or the
Commissioner and relates to existence of
condition precedent on the basis of which
such exercise of jurisdiction under Section
210 depends. The latter relates to spelling
out the circumstances under which the
jurisdiction under Section 210 may be
exercised.

44. The maintainability of a revision
would therefore depend on two conditions;
first, that it must relate to a suit or
proceeding decided by any Revenue Court
subordinate to the Board or Commissioner
and second, it must be in connection with
any 'suit or proceeding decided', against
which no appeal lies. Once these twin
conditions are satisfied, it cannot be said
that the revision would not be maintainable.
The question, whether in a given case, the
Court chooses to exercise the jurisdiction to
interfere with the orders passed by the
subordinate Revenue Court in a suit or
proceeding decided would depend upon the
facts and circumstances indicative of
jurisdictional error in a particular case.

45. It is well settled that an appeal is a
continuation of the suit. Whenever an
appeal lies against any decree and when an
appeal is filed, the finality of the decree of
the trial court ceases. Thereafter, it is the
judgment and decree of the appellate court
which would replace the decree and
judgment of the trial court.

46. It can therefore be said that the
word 'proceeding' would also include the
'proceedings' at the appellate stage. This
would be more so for the reason that the
pursuit of a legal remedy, suit, appeal or
second appeal are steps in a series of
proceedings all connected by an intrinsic
unity and are to be regarded as one legal
proceeding.

47. The meaning to be attributed to
the word 'proceeding' thus would to depend
upon the scope of the enactment wherein
the expression is used and with reference to
the particular context wherein it occurs. In
9 All. Tarkeshwar & Ors. Vs. State of U.P. & Ors.
505
general sense, the word 'proceeding' is to be
held to mean the form and manner of
conducting judicial business before a court.
It can be seen as a stage in the journey of a
litigation - a step in the ladder of the
judicial process.

48. The word 'proceeding', in the
expression 'proceeding decided' occurring
in Section 210 of the Revenue Code would
therefore have to be construed as being
wide enough to comprehend within its
ambit a proceeding initiated pursuant to an
appellate order also. It would, in fact,
include any suit, appeal or application. The
expression 'proceeding' with reference to a
party vis-a-vis a court of law would have to
be held to include each and every step or
action taken before or during the course of
the progress of the suit, including the
appellate stage.

49. The condition precedent in order
to invoke the revisional jurisdiction under
Section 210 has been seen to include within
its ambit 'proceeding decided' other than a
'suit decided'. It cannot be restricted to the
entirety of proceedings in the journey of a
suit. To interpret 'proceeding decided' as
entire proceedings and not a part of a
proceeding would amount to restricting the
exercise of revisional jurisdiction which is
not as contemplated under Section 210.

50. The revisional court has the power
to rectify an order of a subordinate revenue
court at any stage of the suit or
proceedings, even if, the order does not
finally
dispose
of
the
suit
or
the
proceeding. The expression 'proceeding
decided' would include a part of a
proceeding and an interlocutory order
directly affecting the rights and obligation
of parties would also have to be held to be
included within its scope.

51. The order passed by the
Commissioner having decided the appeal
finally, the same would have to be held to
be within the ambit of the expression
'proceeding decided', occurring in Section
210 of the U.P. Revenue Code, and
therefore
the
remedy
of
a
revision
thereagainst cannot be said to be excluded.

52. The order dated 18.11.2022
passed
by
the
Commissioner
while
deciding the appeals having been held to be
amenable to the statutory remedy of
revision under Section 210 of the U.P.
Revenue Code, this Court would not be
inclined to entertain the writ petition in
view of the availability of an efficacious
statutory legal remedy.

53.

The
writ
petition
stands
accordingly dismissed.
----------
(2023) 9 ILRA 505
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.07.2023

BEFORE

THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Writ-C No. 13852 of 2023

Tarkeshwar & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Madan Ji Pandey, Sri Sudhanshu Pandey

Counsel for the Respondents:
C.S.C., Sri Sudhir Bharti

Civil Law - U.P. Revenue Code, 2006 -
Sections 24 (1), 24(4), 206, 207 & 209(h)
- U.P. Revenue Code Rules, 2016 - Rule 22
- Recall application against an ex parte