# Ram Ajor & Ors v. Board of Revenue & Ors

- **Citation:** (2024) 1 ILRA 1289
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-10-26
- **Case number:** J. Writ-B No. 2688 of 2023
- **Bench:** Syed Qamar Hasan Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-ajor-ors-v-board-of-revenue-ors-50864
- **Pages:** 14

## Headnote

of Proceedings Under Section 5(2) -
Petitioners challenged the Board of Revenue's
order dated 27.06.2023, which set aside the
Sub Divisional Officer's order dated 25.04.2018
consigning a restoration application under Order
IX Rule 13, CPC, as abated due to consolidation
operations - Held, proceedings under Section
5(2) of the U.P. Consolidation of Holdings Act,
1953, abate only for suits or proceedings
involving correction of records or declaration of
rights/interest in land - A restoration application
under Order IX Rule 13, CPC, being collateral
and limited to setting aside an ex parte decree
without adjudicating substantive rights, does
not fall within the ambit of Section 5(2) and
thus does not abate, as supported by Ram
Naval Vs Board of Revenue and Ram Nath Vs
Additional Commissioner. (Paras 18, 20, 21, 26,
34, 40, 45, 46, 47, 50)

B.
Civil
Procedure
-
Restoration
Application Under Order IX Rule 13, CPC -
Respondent no. 2 filed a restoration application
on 30.01.2015 to set aside an ex parte decree
dated 19.08.1970/30.01.1971, alleging it was
based on a forged compromise - Held, a
restoration application under Order IX Rule 13,
CPC, is distinct from a review, as it does not
involve reconsidering the merits of the judgment
but only assesses whether sufficient cause
prevented the defendant's appearance - Such
proceedings are not substantive and do not
revive the suit unless allowed, per Shiv Shanker
Singh Vs Sonia and Kunwar Bahadur Singh Vs
Shiv Shankar. (Paras 27, 29, 30, 31, 32, 34, 44)

C. Judicial Review - Board of Revenue's
Order - Correctness of Reasoning - The Board
of Revenue remanded the matter to the Sub
Divisional Officer, holding that the restoration
application
was
pending
before
the
consolidation notification and thus not abated -
Held, while the remand was correct, the Board's
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
reasoning
based
on
the
timing
of
the
consolidation notification (incorrectly cited as
06.02.2015
instead
of
03.05.2014)
was
irrelevant - The restoration application does
not abate under Section 5(2) regardless of its
pendency at the start of consolidation, as it
does not involve adjudication of land rights,
per
Mool
Chand
Vs
Deputy
Director,
Consolidation. (Paras 13, 15, 17, 41, 48, 50,
51)

D. Consolidation Act - Scope of Section
5(2) and Legislative Intent - Petitioners
argued that the restoration application should
abate as the village came under consolidation
on 03.05.2014 - Held, Section 5(2) aims to
vest exclusive jurisdiction in consolidation
authorities for claims involving land rights to
avoid conflicting jurisdictions, as per Abdul
Wahid
Khan
Vs
Bhawani
-
However,
restoration proceedings under Order IX Rule
13, CPC, being incidental and not involving
substantive land rights, are outside this scope
and remain within the jurisdiction of the
original court, as clarified by Sakal Singh Vs
Smt. Devi. (Paras 22, 23, 24, 25, 38, 42, 43)

E.
Restoration
Application
-
Maintainability and Procedure - Petitioners
contended
that
the
second
restoration
application filed after 19 years was not
maintainable - Held, the court did not
adjudicate the maintainability or merits of the
restoration application, as the issue was
limited to whether it abated under Section
5(2) - The Sub Divisional Officer was directed
to decide the restoration application dated
30.01.2015 on its merits within six months,
without prejudice to the parties' contentions,
ensuring expeditious resolution. (Paras 15,
47, 52)

Writ Petition Disposed - Order Upheld with
Modified Reasoning - Restoration Application
to be Decided on Merits.

List of Cases cited:

## Text

_Characters 0–39,625 of 46,849. This is a partial read: ask again with offset=39625 for what follows._

1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1289
the opinion already expressed by the DIG
in the show cause notice. Therefore the said
show cause notice in the considered
opinion of the court is illegal notice and on
the basis of previous conduct, severe
punishment of termination cannot be
awarded. We are of the considered opinion
that no charge of misbehaviour with
seniors/colleagues due to intoxication was
proved against the petitioner during enquiry
as no urine or blood test of the petitioner
herein
was
conducted.
Since
the
punishment order had been passed in
violation of the statutory rules and the
principles of natural justice, it is rendered
null and void.

27. For all the reasons, as afore stated
the instant writ petition is allowed. and the
impugned
orders
dated
7.5.2012,
25.9.2012,
29.5.2012,
11.1.2016
and
29.5.2017 are hereby set aside. The
petitioner herein shall be reinstated in
service with continuity in service alongwith
50% back wages for the period he was out
of service. The respondents are directed to
reinstate the petitioner in service forthwith
and shall make payment of his back wages,
as above, within two months from the date
of receipt of a certified copy of this order.

28. No cost.
----------
(2024) 1 ILRA 1289
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 26.10.2023

BEFORE

THE HON'BLE SYED QAMAR HASAN RIZVI,
J.

Writ-B No. 2688 of 2023

Ram Ajor & Ors. ...Petitioners
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioners:
Sri Awadhesh Kumar Yadav

Counsel for the Respondents:
C.S.C., Sri Amrendra Pratap Singh

A. Consolidation of Holdings - Abatement
of Proceedings Under Section 5(2) -
Petitioners challenged the Board of Revenue's
order dated 27.06.2023, which set aside the
Sub Divisional Officer's order dated 25.04.2018
consigning a restoration application under Order
IX Rule 13, CPC, as abated due to consolidation
operations - Held, proceedings under Section
5(2) of the U.P. Consolidation of Holdings Act,
1953, abate only for suits or proceedings
involving correction of records or declaration of
rights/interest in land - A restoration application
under Order IX Rule 13, CPC, being collateral
and limited to setting aside an ex parte decree
without adjudicating substantive rights, does
not fall within the ambit of Section 5(2) and
thus does not abate, as supported by Ram
Naval Vs Board of Revenue and Ram Nath Vs
Additional Commissioner. (Paras 18, 20, 21, 26,
34, 40, 45, 46, 47, 50)

B.
Civil
Procedure
-
Restoration
Application Under Order IX Rule 13, CPC -
Respondent no. 2 filed a restoration application
on 30.01.2015 to set aside an ex parte decree
dated 19.08.1970/30.01.1971, alleging it was
based on a forged compromise - Held, a
restoration application under Order IX Rule 13,
CPC, is distinct from a review, as it does not
involve reconsidering the merits of the judgment
but only assesses whether sufficient cause
prevented the defendant's appearance - Such
proceedings are not substantive and do not
revive the suit unless allowed, per Shiv Shanker
Singh Vs Sonia and Kunwar Bahadur Singh Vs
Shiv Shankar. (Paras 27, 29, 30, 31, 32, 34, 44)

C. Judicial Review - Board of Revenue's
Order - Correctness of Reasoning - The Board
of Revenue remanded the matter to the Sub
Divisional Officer, holding that the restoration
application
was
pending
before
the
consolidation notification and thus not abated -
Held, while the remand was correct, the Board's
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
reasoning
based
on
the
timing
of
the
consolidation notification (incorrectly cited as
06.02.2015
instead
of
03.05.2014)
was
irrelevant - The restoration application does
not abate under Section 5(2) regardless of its
pendency at the start of consolidation, as it
does not involve adjudication of land rights,
per
Mool
Chand
Vs
Deputy
Director,
Consolidation. (Paras 13, 15, 17, 41, 48, 50,
51)

D. Consolidation Act - Scope of Section
5(2) and Legislative Intent - Petitioners
argued that the restoration application should
abate as the village came under consolidation
on 03.05.2014 - Held, Section 5(2) aims to
vest exclusive jurisdiction in consolidation
authorities for claims involving land rights to
avoid conflicting jurisdictions, as per Abdul
Wahid
Khan
Vs
Bhawani
-
However,
restoration proceedings under Order IX Rule
13, CPC, being incidental and not involving
substantive land rights, are outside this scope
and remain within the jurisdiction of the
original court, as clarified by Sakal Singh Vs
Smt. Devi. (Paras 22, 23, 24, 25, 38, 42, 43)

E.
Restoration
Application
-
Maintainability and Procedure - Petitioners
contended
that
the
second
restoration
application filed after 19 years was not
maintainable - Held, the court did not
adjudicate the maintainability or merits of the
restoration application, as the issue was
limited to whether it abated under Section
5(2) - The Sub Divisional Officer was directed
to decide the restoration application dated
30.01.2015 on its merits within six months,
without prejudice to the parties' contentions,
ensuring expeditious resolution. (Paras 15,
47, 52)

Writ Petition Disposed - Order Upheld with
Modified Reasoning - Restoration Application
to be Decided on Merits.

List of Cases cited:

1.
Mool
Chand
Vs
Deputy
Director,
Consolidation, (1995) 5 SCC 631

2. Ram Nath Vs Additional Commissioner
(Administrative), Varanasi, 2015 (1) RJ 412
3. Sakal Singh Vs Smt. Devi, AIR 1979
Allahabad 274

4. Ram Naval Vs Board of Revenue, U.P.,
Allahabad, 2006 (9) ADJ 441

5. Shiv Shanker Singh Vs Sonia, (1957) 27 AWR
189

6. Kunwar Bahadur Singh Vs Shiv Shankar, AIR
1950 All 327

7.
Ghanashyam
Mohapatra
Vs
Suryamani
Swaim, AIR 1964 Orissa 205

8. Tulsipat Ram Vs Nayab Singh, AIR 1958 All
565

9. Abdul Wahid Khan Vs Bhawani, AIR 1966 SC
1718

(Delivered by Hon'ble Syed Qamar Hasan
Rizvi, J.)

1. Heard, Sri Awadesh Kumar Yadav,
learned Counsel for the petitioners, Sri
Anshul Nigam, learned Standing Counsel
for the State-respondent nos. 1 & 3 and Sri
Amrendra Pratap Singh, learned Counsel
for the respondent no. 2.

2. With the consent of the learned
counsel for the parties, this Court proceeds
to finally decide the present Writ Petition at
the admission stage itself.

3. The relevant facts in brief, as
narrated by the petitioners in the writ
petition, are that the petitioners and
respondent no.2 belong to the same family
and the dispute is in respect of a property
that belonged to Late Shiv Gulam, who was
the ancestor of the petitioners and the
respondent no. 2.

4. The submission of the learned
counsel appearing on behalf of the
petitioners is that the father of the
petitioners filed a partition suit bearing Suit
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1291
No. 35 of 1970 (Ram Aasre and another
versus Jhinnu) in the Court of learned Sub
Divisional Officer, Bansi, District Basti
(the then). The said Suit, on the basis of a
compromise between the parties, was
decided on 19.08.1970 and the decree was
passed on 30.01.1971. The respondent
no.2-Rajendera along with two others
namely Sri. Motilal and Smt. Jamuni filed
an application dated 03.01.1987 under
Order IX Rule 13 of the Civil Procedure
Code, 1908 against the judgement and
decree dated 19.08.1970 and 30.01.1971
respectively; before the learned Court of
Sub Divisional Officer, Bansi. The parties
to the said proceeding amicably settled
their dispute and accordingly moved an
application dated 01.11.1995 before the
aforesaid Court, inter alia, praying that the
said
restoration
application
dated
03.01.1987, filed under Order IX Rule 13
of the Civil Procedure Code, 1908 be
dismissed as withdrawn.

5. It has been asserted on behalf of the
petitioners that the Village Auraiyya
Manjhriya,
Tappa
Gosiyari,
Paragana
Manghar
Paschim,
Tehsil
Mehdawal,
District Sant Kabir Nagar; came under
consolidation operation and Notification
No. 1425/G 610/2012 under Section 4(2) of
the Consolidation of Holdings Act, 1953
(hereinafter
referred
to
as
the
'Consolidation Act'), was issued on
03.05.2014.

6. Further, the respondent no. 2,
namely, Rajendera after a period of about
19 years, again filed an application dated
30.01.2015 under Order IX Rule 13 read
with Section 151 of the Civil Procedure
Code, 1908 (herein after referred to as
'Restoration
Application')
before
the
learned Court of Sub Divisional Officer,
Mehdawal, Sant Kabir Nagar, inter alia,
praying for setting aside of the aforesaid
judgement and decree dated 19.08.1970 /
30.01.1971 passed in the partition Suit No.
35 of 1970 and to restore the same to its
original number to be decided on merit
after entertaining the objections raised by
him.

7. On the aforesaid Restoration
Application, the learned Sub Divisional
Officer
Mehdawal,
vide
order
dated
11.02.2015 directed the Peshkar to place
the same along with the records by fixing a
date and issuing notices to the opposite
parties.

8. Against the aforesaid Restoration
Application,
petitioners
filed
detailed
objection dated 15.03.2018 with the prayer
to dismiss the same and to maintain the
judgement and decree dated 19.08.1970 /
30.01.1971 passed in the partition Suit No.
35 of 1970.

9. It has been further submitted on
behalf of the petitioners that the respondent
no. 2 also filed an objection under Section
9A (2) of the Consolidation Act before the
Consolidation Officer, Sant Kabir Nagar on
20.05.2016 in respect of the same dispute
and on receipt of the notices the petitioners
appeared on 08.11.2016 and filed a counter
reply to the said objection.

10. The learned Sub Divisional
Officer,
Mehdawal
after
hearing
the
parties; vide order dated 25.04.2018,
directed
to
consign
the
aforesaid
Restoration proceeding to records as having
been abated, on the ground that since the
Village
Auraiyya
(Manjhriya),
Tappa
Gosiyari,
Paragana
Maghar
Paschim,
Tehsil Mehdawal, District Sant Kabir
Nagar,
has
been
declared
under
consolidation operation.
1292 INDIAN LAW REPORTS ALLAHABAD SERIES

11. Aggrieved by the aforesaid order
dated 25.04.2018 passed by the learned Sub
Divisional
Officer,
Mehdawal,
the
respondent no.2 namely Rajendera filed a
Revision under Section 333 of U.P.
Zamindari Abolition and Land Reforms
Act, 1950, before the learned Board of
Revenue, U.P. (respondent no.1). The said
Revision was registered as Case No.
REV/1228/2018/Sant
Kabir
Nagar
(Computerised
Case
No.
R20181765001228).

12. The learned Board of Revenue
(respondent no.1) vide Order dated
27.06.2023, allowed the said Revision
thereby
set
aside
the
Order dated
25.04.2018 passed by the learned Sub
Divisional Officer, Mehdawal, by holding
the same as legally erroneous and
remanded the matter to the learned Court
of Sub Divisional Officer, Mehdawal
with the direction to firstly decide the
Restoration Application on merits and
thereafter to consider the question of
abatement of Suit.

13. The learned Board of Revenue
(respondent no.1) while deciding the
aforesaid Revision vide Order dated
27.06.2023 returned a categorical finding
that
since
the
aforesaid
Restoration
Application was filed on 31.01.2015 as is
evident from the order-sheet and, the
publication under Section 4(2) of the
Consolidation
Act
was
made
on
06.02.2015,
goes
to
show
that
the
restoration application was pending for
consideration when the commencement of
consolidation operation was notified, as
such, the jurisdiction to decide the said
restoration application on merit, lies with
the Sub Divisional Officer, Mehdawal,
accordingly, the trial Court has committed
a manifest error of law by not deciding the
Restoration Application and declaring the
same as abated.

14. Being aggrieved by the Order
dated 27.06.2023 passed by the learned
Board of Revenue (respondent no.1), the
petitioner
approached
this
Court
by
preferring the present writ petition under
Article 226 of the Constitution of India,
praying for the following reliefs,

(i) Issue a writ, order or direction
in the nature of certiorari quashing the
impugned order dated 27.06.2023 passed
by respondent no. 1 (Annexure no. 9 to the
writ petition).

(ii) Issue any other suitable order
or direction which this Hon'ble Court may
deem fit and proper in the facts and
circumstances of the case.

(iii) To award the cost of the writ
petition in favour of petitioners.

15. Assailing the impugned order
dated 27.06.2023 the learned counsel for
the
petitioners
raised
the
following
arguments:

15.1. That the learned Board of
Revenue (respondent no.1) has miserably
mistaken to consider 06.02.2015 as the date
of Notification under Section 4(2) of the
Consolidation Act, while the correct date is
03.05.2014 with effect from which the
Village
concerned
came
under
consolidation operation.

15.2. That the finding recorded
by
the
learned
Board
of
Revenue
(respondent no.1) to the erffect that the
Restoration Application was pending for
consideration when the commencement of
consolidation operation was notified and as
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1293
such it was well within the jurisdiction of
the Sub Divisional Officer, Mehdawal to
decide the said restoration application is
factually incorrect and erroneous.

15.3. That the impugned Order
dated 27.06.2023 passed by the learned
Board of Revenue (respondent no.1)
remanding the matter to the Court of
learned
Sub
Divisional
Officer,
Mehdawal with the direction to firstly
decide the Restoration Application on
merits and thereafter to consider the
question of abatement is totally against
the provisions of Section 5(2) of the
Consolidation
Act
that
specifically
provides that every pending proceeding
shall stand abated once the land lying in
the area which has been declared to be
under
consolidation
operation
vide
notification under Section 4(2) of the
Consolidation Act. In support of his
contention, the learned Counsel for the
petitioner relied upon the judgment
passed by the Hon'ble Supreme Court of
India in the case of Mool Chand versus
Deputy
Director,
Consolidation
reported in 1995 (5) SCC 631.

15.4. That the partition Suit
bearing Case No. 35 of 1970 was decided
in the year 1970 on the basis of
compromise between the parties, the
same cannot be reopened by way of
restoration after such a long period of
about 19 years and that too after the
commencement
of
the
consolidation
operation in the village concerned.

15.5. That apart from the above
mentioned
reasons,
the
Restoration
application in question is not at all
maintainable as the same is the second
restoration
application
filed
by
the
respondent.

16. Per contra, the main contentions
advanced by the learned Counsel appearing
on behalf of the respondent no.2 are as
under:

16.1. That no 'Suit' was pending
at the time of the start of the consolidation
operation in accordance with Section
4(2)(a) of Consolidation Act and the
proceeding under Order IX Rule 13 of the
Code of Civil Procedure does not, by itself,
revive the Suit and as such the said
proceeding will not stand abated under
Section 5(2) of the Consolidation Act.

16.2. That it is well settled that
the proceeding under Order IX Rule 13 of
the Code of Civil Procedure / restoration
application does not fall within the bar as
contemplated under Section 49 of the
Consolidation Act.

16.3. That since the partition
Suit No. 35 of 1970 (Ram Aasre and
another versus Jhinnu) was decided on
19.08.1970 / 30.01.1971 by the Court of
learned Sub Divisional Officer, on the
basis of a forged compromise alleged to
have been entered between the parties
and is absolutely ex-parte against the
answering
respondent,
as
such,
the
restoration application under Order IX
Rule 13 of the Code of Civil Procedure is
maintainable and the said proceeding
would not stand abated under Section
5(2) of the Consolidation Act. In support
of his argument, he placed reliance on the
judgment passed by this Court in the case
of Ram Nath and others versus
Additional
Commissioner
(Administrative)
Varanasi,
Division
Varanasi and others, reported in 2015
(1) RJ 412 and Sakal Singh & others
versus Smt. Devi & another, reported
in AIR 1979 Allahabad 274.
1294 INDIAN LAW REPORTS ALLAHABAD SERIES

17. Sri Anshul Nigam, learned
Standing Counsel for the State-respondents
has
elucidated
this
Court
on
the
controversy of the date of notification of
consolidation operation in the concerned
village, by filing an affidavit duly sworn by
the Settlement Officer of Consolidation,
District
Sant
Kabir
Nagar
dated
19.10.2023, wherein it has been deposed
that vide order dated 25.03.2014 the
Village
Auraiyya
Manjhriya,
Tappa
Gosiyari, Paragana Manghar Paschim,
Tehsil Mehdawal, District Sant Kabir
Nagar, was declared for consolidation
operation and the notification to this
effect was published vide Gazette dated
03.05.2014. In pursuance of the said
gazette notification, the consolidation
authorities initiated the consolidation
operation on 06.02.2015 by beating
drums
(Munadi)
to
make
declaration/publication for the public at
large so as to be informed that the
consolidation operations have started. It
is also provided in the aforesaid affidavit
that subsequently, the notification under
52(1) of the Consolidation Act for
conclusion of the consolidation operation
has been made by the Consolidation
Commissioner, Government of U.P.,
Lucknow on 21.06.2023.

18.

Having
considered
the
respective arguments as advanced by the
learned counsels for the parties, it
emerged out that in the instant case, the
moot question for determination before
this Court is the applicability / effect of
Section 5(2) of the Consolidation Act,
1953 on the proceeding for Restoration of
a suit under Order IX Rule 13 of Civil
Procedure Code, 1908.

19. At the very outset, it is imperative
to mention that after the declaration, made
by the State Government through Gazette,
to the effect that the district or part thereof,
as the case may be, has been decided to be
brought under consolidation operations, as
provided under Section 4(1)(a) of the
Consolidation Act, any officer or authority
duly empowered by the District Deputy
Director of Consolidation, becomes legally
competent to exercise its' functions as
provided in the consolidation Act. For
better appreciation of the same, Section 4
of the Act is reproduced hereinbelow,

"4. Declaration and notification
regarding consolidation. (1)(a) The
State Government may, where it is of
opinion that a district or part thereof may
be brought under consolidation operations,
make a declaration to that effect in the
Gazette, whereupon it shall become lawful
for any officer or authority who may be
empowered in this behalf by the District
Deputy Director of Consolidation -

(i) to enter upon and survey, in
connection
with
rectangulation
or
otherwise, and to take levels of any land in
such area;

(ii) to fix pillars in connection
with rectangulation, and;

(iii) to do all acts necessary to
ascertain the suitability of the area for
consolidation operations.

(b) The District Deputy Director
of Consolidation shall cause public notice
of the declaration issued under clause (a)
to be given at convenient places in the said
district or part thereof.

(2)(a) When the State Government
decides to start consolidation operations,
either in an area covered by a declaration
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1295
issued under sub-section (1) or in any other
area, it may issue a notification to this effect.]

[(b) Every such notification shall
be published in the Gazette and in a daily
newspaper having circulation in the said
area and shall also be published in each unit
in the said area in such manner as may be
considered appropriate.]"

20. The consolidation operation starts
as soon as it is notified under Section 4(2) of
the Consolidation Act. The effect of the
aforesaid notification issued under Section
4(2)(a) of the Consolidation Act is that every
proceeding for the correction of records and
every suit and proceeding in respect of
declaration of rights or interest in any land
lying in the area, or for declaration or
adjudication of any other right in regard to
which proceedings can or ought to be taken
under the Consolidation Act, pending before
any Court or authority whether of the first
instance or of appeal, reference or revision,
shall, on an order being passed in that behalf
by the Court or authority before whom such
suit or proceeding is pending, stands abated.

21. The effect of the start of
consolidation operation is provided under
section 5 of the consolidation Act. The
relevant provision as contemplated under
sub- section 2 of Section 5 of the
Consolidation
Act
is
reproduced
hereinbelow,

"5. Effect of notification under
Section 4(2). -

(1)
......................................................................
......................

(2) Upon the said publication of
the notification under sub-section (2) of
Section
4,
the
following
further
consequences shall ensue in the area to
which the notification relates, namely -

(a) every proceeding for the
correction of records and every suit and
proceeding in respect of declaration of
rights or interest in any land lying in the
area, or for declaration or adjudication of
any other right in regard to which
proceedings can or ought to be taken under
this Act, pending before any Court or
authority whether of the first instance or of
appeal, reference or revision, shall, on an
order being passed in that behalf by the
Court or authority before whom such suit
or proceeding is pending, stand abated :

Provided that no such order shall
be passed without giving to the parties
notice by post or in any other manner and
after giving them an opportunity of being
heard:

Provided further that on the issue
of a notification under sub-section (1) of
Section 6 in respect of the said area or part
thereof, every such order in relation to the
land lying in such area or part as the case
may be, shall stand vacated;

(b) such abatement shall be
without prejudice to the rights of the
persons affected to agitate the right or
interest in dispute in the said suits or
proceedings
before
the
appropriate
consolidation authorities under and in
accordance with the provisions of this Act
and the rules made thereunder.]

[Explanation. - For the purposes
of sub-section (2), a proceeding under the
Uttar Pradesh Imposition of Ceiling on
Land Holdings Act, 1960 or an uncontested
proceeding under Sections 134 to 137 of
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
the U.P. Zamindari Abolition and Land
Reforms Act, 1950, shall not be deemed to
be a proceeding in respect of declaration of
rights or interest, in any land.]"

22. The concept of abatement as
provided under
section
5(2) of
the
Consolidation Act is that when a scheme of
consolidation is undertaken, the jurisdiction
for adjudication of various claims to land
involved
in
consolidation
should
exclusively vest in the consolidation
authorities set up under the said Act.
Further, in order to permit the authorities to
pursue adjudication of rival claims to land
unhampered by any proceedings in civil
courts or revenue courts, a wholesome
provision was made that the pending
proceedings involving claims to land in the
hierarchy of civil / revenue courts, may be
in the trial court, appeal or revision, should
abate.

23. The intention of legislation behind
the aforesaid provision under section 5 of
the
Consolidation Act
is
to
ensure
impediment-free adjudication of claims to
land before the authorities under the
Consolidation Act without being obstructed
by proceedings in civil courts or without
being hampered by decisions of the civil /
revenue
courts
in
the
course
of
consolidation of holdings.

24. It would be apt to say that object
behind the provision of abetment as
provided under
section
5(2) of
the
Consolidation Act is to avoid conflict
consequent upon rival jurisdictions. The
legislature provided that the proceedings
involving the claims to land put in
consolidation
should
be
exclusively
examined by the authorities under the
Consolidation Act and all rival jurisdictions
would be closed. Simultaneously it was
necessary to deal with the pending
proceedings and that is why the provision
for abatement of such proceedings has been
incorporated.

25. It would not be out of place to
mention here that section 49 of the
Consolidation Act ousts the jurisdiction of
the Courts of law including the Civil or
Revenue from entertaining any suit or
proceeding with respect to rights in such
land or with respect to any other matter for
which a proceeding could or ought to have
been taken under the Consolidation Act.
Thus, upon publication of notification
under section 4(2) of the Consolidation Act
the jurisdiction of the Court or authority,
which are otherwise competent to entertain
and adjudicate the aforesaid suit or
proceeding, become barred. It is a wellsettled legal proposition that a statute
ousting the jurisdiction of a court must be
strictly construed as has been observed by
the Hon'ble Supreme Court in the case of
Abdul Wahid Khan versus Bhawani and
others, reported in AIR 1966 SC 1718.

26. However, the dispute in the
instant case is to be seen from a different
perspective. What is to be determined by
this Court is that whether the proceeding on
the application under Order IX Rule 13 of
the Civil Procedure Code, falls within the
meaning
of
pending
proceeding
as
specified under section 5(2) of the
Consolidation Act.

27. In order to deal the aforesaid
issue, it is necessary to firstly, go through
the provisions as provided under Order IX
Rule 13 Civil Procedure Code. For a ready
reference, the same is quoted hereinbelow,

"13. Setting aside decree ex
parte against defendant. In any case in
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1297
which a decree is passed ex parte against a
defendant, he may apply to the Court by
which the decree was passed for an order
to set it aside; and if he satisfies the Court
that the summons was not duly served, or
that he was prevented by any sufficient
cause from appearing when the suit was
called on for hearing, the Court shall make
an order setting aside the decree as against
him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and
shall appoint a day for proceeding with the
suit:

Provided that where the decree is
of such a nature that it cannot be set aside
as against such defendant only it may be set
aside as against all or any of the other
defendants also:

[Provided further that no Court
shall set aside a decree passed ex parte
merely on the ground that there has been an
irregularity in the service of summons, if it
is satisfied that the defendant had notice of
the date of hearing and had sufficient time
to appear and answer the plaintiff's claim]

[Explanation.-Where there has
been an appeal against a decree passed ex
parte under this rule, and the appeal has
been disposed of on any ground other than
the ground that the appellant has withdrawn
the appeal, no application shall lie under
this rule for setting aside that ex parte
decree.]"

28. The aforesaid provision under
Order IX Rule 13 of the Civil Procedure
Code, deals with a situation where the
defendant was prevented by any sufficient
cause from appearing when the suit was
called on for hearing and a decree was
passed ex parte; the Court by which the
said decree was passed, shall make an order
setting aside the said decree as against him
and shall appoint a day for proceeding with
the suit.

29. Further, the Order IX Rule 13 of
the Civil Procedure Code provides that in
any case in which a decree is passed ex
parte against a defendant, he may apply to
the Court by which the decree was passed,
for an order to set it aside. From a bare
perusal of the said provision, it is apparent
that once an application under Order IX
Rule 13 of the Civil Procedure Code
(herein
referred
to
as
Restoration
application), is allowed, the ex parte decree
is set aside and deemed as wiped off the
record, the suit is restored to its original
position and number.

30. In the case of Shiv Shanker
Singh versus Sonia reported in (1957) 27
AWR 189, this Court held that in
adjudicating
a
Restoration
application
under Order IX Rule 13 of the Civil
Procedure Code, the Courts must confine
its findings to the extent that the decree
sought to be set aside is passed ex parte and
there was sufficient cause for the nonappearance of the defendant, when the suit
was
called
for
hearings.
For
ready
reference, an excerpt of Paragraph 5 is
extracted hereinbelow,

"5. The essential condition to
which a court has to focus its attention
before passing an order under Order IX
Rule 13 is that the summons has not been
duly served or that the Defendant was
prevented by any sufficient cause from
appearing when the suit was called on for
hearing..."

31. The Hon'ble Division Bench of
this Court in the case of Kunwar Bahadur
Singh versus Shiv Shankar reported in
1298 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 1950 All 327 while carving out a
distinction between an application for
review and an application for restoration,
explained the aim which is sought to be
achieved by a restoration application under
Order IX Rule 13 Civil Procedure Code.
For convenience, paragraph 30 of the same
is extracted hereinbelow,

"30. There seems to be no force
in this contention, for an application for
review, in its very essence, is quite different
from an application for restoration. The
one aims at a reconsideration of the
judgment already pronounced and seeks to
establish that it is erroneous, while the
other seeks that that judgment be entirely
ignored from consideration and set aside,
whether it be right or wrong. The one
concerns itself with the merits of the
decision, while the other concerns itself
with the sufficiency of service upon the
applicant and the sufficiency or otherwise
of the cause, preventing him from being
present."

32. In the case of Ghanashyam
Mohapatra and others versus Suryamani
Swaim reported in AIR 1964 Orissa 205,
the Hon'ble Division Bench of the High of
Orissa, held that a restoration application
under Order IX Rule of the Civil Procedure
Code, however, does not come within the
purview of review as provided under Order
XLVII of the Civil Procedure Code. An
application for restoration of a suit within
the meaning of Order IX Rule 13 is not
such an application where the Court is
called upon to reconsider the merits of the
judgment. While considering such an
application, the Court has to satisfy itself as
to whether the party was prevented by any
sufficient cause from appearing when the
suit was called on for hearing. In no sense,
an application for restoration moved under
Order IX Rule 13 of the Civil Procedure
Code can be said to be on the same footing
as an application for review where the
whole judgment has to be examined on
merits.

33. This Court in the case of Tulsipat
Ram versus Nayab Singh reported in AIR
1958 All 565 held that an order refusing to
set aside an ex parte decree is not a review
of the judgment within the meaning of
Article 182(3) of the Limitation Act.

34. Therefore, it is the settled legal
position that a Restoration application
within the meaning of Order IX Rule 13 of
the Civil Procedure Code, is not an
application where the Court is called upon
to reconsider the merits of the judgement
and decree. The scope of the said
Restoration proceeding is limited to the
extent that while entertaining such an
application under Order IX Rule 13 of the
Civil Procedure Code, the Court is
concerned only with the limited question
that the decree sought to be set aside is
passed ex parte and there was sufficient
cause for the non-appearance of the
defendant when the suit was called for
hearings at that stage and it should not in
any case consider the merits of the
judgment
in
question.
Further,
the
application for Restoration should not be
misconstrued as an application for review
as its very essence is quite different from
an application for restoration. The former
aims at reconsideration of the judgment
already pronounced while the latter seeks
that the judgment be entirely ignored from
consideration and to be set it aside, whether
it is right or wrong.

35.

The
next
question
for
consideration in the instant case is that the
term "proceeding" as occurred in Section
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1299
5(2) of the Consolidation Act, will or will
not
include
within
its
meaning,
a
'Restoration proceeding'.

36. To understand the nature of the
'proceedings' within the meaning of
Section 5(2) of the Consolidation Act, it
should be borne in mind that, it is the
settled legal proposition that the words of
the statute should normally be given their
ordinary meaning bearing in mind the
context. If the words of the statutes are
precise and unambiguous, then, it is
necessary to expound those words in that
natural and ordinary sense. The words
themselves alone, in such case, best declare
the intention of the legislature.

37. The language of section 5(2) of
the Consolidation Act is very categorical. It
explicitly provides that every proceeding
for
the
correction
of
records
and
proceeding in respect of declaration of
rights or interest in any land lying in the
area, or for declaration or adjudication of
any other right in regard to which
proceedings can or ought to be taken under
this Act, pending before any Court or
authority whether of the first instance or of
appeal, reference or revision, shall, on an
order being passed in that behalf by the
Court or authority before whom such suit
or proceeding is pending, stands abated,
upon the publication of the notification
under sub-section (2) of Section 4 of the
Consolidation Act.

38. The aforesaid Section 5(2)
encompasses only the proceeding for the
correction of records and proceeding in
respect of declaration of rights or interest in
any land lying in the area, or for declaration
or adjudication of any other right in regard
to which proceedings can or ought to be
taken under the Consolidation Act. The
explanation appended to said section
further clarifies the ambit of the term
'proceedings'
as
intended
by
the
legislature, for the purposes of sub-section
(2),
by
specifically
excluding
the
proceedings under the Uttar Pradesh
Imposition of Ceiling on Land Holdings
Act, 1960 or an uncontested proceeding
under Sections 134 to 137 of the U.P.
Zamindari Abolition and Land Reforms
Act, 1950.

39. The provision of Restoration
under Order IX Rule 13 of the Civil
Procedure Code, exclusively deals with the
setting aside of an ex parte decree; without
touching the merits of the judgment in
question. In exercise of its power under
Order IX Rule 13 of the Civil Procedure
Code, the Court setting aside decree or
rejecting the Restoration application for
setting aside the decree cannot go into the
merits in respect to the substantive claims
of the parties and any adjudication of such
claims can be done only after the
restoration application is allowed.

40. The Restoration proceeding under
Order IX Rule 13 of the Code of Civil
Procedure does not by itself involve in
declaration of rights or interest of the
parties in land, as such, the same does not
come within the teeth of Section 5 (2) of
the Consolidation Act.

41. Now, in so far as the judgment
passed by the the Hon'ble Supreme Court
in the case of Mool Chand (Supra) which
has been placed before this Court by the
petitioner is concerned, the same is
diametrically on a different issue, that
whether a notification under Section 4 of
the Act, published after the preliminary
decree in a partition suit is passed, will or
will not abate the entire suit as per Section
1300 INDIAN LAW REPORTS ALLAHABAD SERIES
5(2) of the Act. Even if the orbiter dicta of
the aforesaid judgment are considered for
the instant case, it does not help the
petitioner's case as the Hon'ble Apex Court
in the said case has made it abundantly
clear that only proceedings that relates to
declaration of right or interest in the land
lying in the consolidation area are abated
under Section 5(2) of the Act.

42. As far as the Full Bench judgment
of this Court in the case of Sakal Singh
versus Smt. Devi (Supra) which has been
placed before this Court by the respondent
no.2 is concerned, the issue in the said case
was related to the abatement of a review
application, wherein this Court held that
merely admitting and allowing a review
application against the order of the
appellate court does not revive the suit and
therefore, a review application pending
before the court will not abate the suit
under Section 5(2) of the Act.

43. After considering all that has been
narrated hereinabove, it can be safely said
that Section 5(2) of the Act being
exhaustive, will apply only to proceedings
specified therein, and none other. It cannot
be stretched to bring within its ambit the
proceedings which the legislature did not
intend
to
abate
on
the
onset
of
consolidation operations. Unless the suit or
proceeding fall within the bracket of
correction of the record or declaration of
rights or interest in the land lying in the
area, the jurisdiction of the Courts, which
are otherwise competent to decide the same
cannot be excluded or ousted.

44. It is beyond any doubt that mere
pendency of a Restoration application
moved under Order IX Rule 13 does not
revive the Suit until the said application is
allowed.

45. Thus, Restoration proceeding
under Order IX Rule 13 of the Civil
Procedure Code for setting aside of ex parte
decree does not attract abatement as
provided under
section
5(2) of
the
Consolidation Act, as the same is collateral
and incidental to the suit and not an
extension or in continuation of the suit,
because the suit had already culminated
into a decree.

46. This conclusion also finds support
from the decision of this Court in the case
of Ram Naval versus Board of Revenue,
U.P., Allahabad and others reported in
2006 (9) ADJ 441 wherein it has been held
that restoration application, or an appeal or
revision arising out of an order rejecting or
allowing restoration application does not
abate
under
section
5(2)
of
the
Consolidation Act. Further, in the case of
Ram
Nath
versus
Additional
Commisioner (Administrative) Varanasi
reported in 2015 (1) RJ 412, this Court has
elaborated that the proceedings upon the
restoration application would not abate on
account
of
consolidation
proceedings
having intervened and the restoration
application or any proceedings arising out
of it will have to be adjudicated on the
basis of materials placed on record for
adjudication of the matter.

47. In the instant case, as a
Restoration application dated 31.05.2015
filed under Order IX Rule 13 of the Civil
Procedure Code moved by the respondent
no. 2 for the reasons as discussed above,
does not abate under Section 5(2) of the
Consolidation Act, therefore, the Board of
Revenue (respondent no.1) has rightly
remanded the matter to the Sub Divisional
Officer, Mehdawal with the direction to
decide the Restoration Application on its'
own merits.
1 All. Ram Ajor & Ors. Vs. Board of Revenue & Ors.
1301

48.