Parmeshwar Din and others vs Deputy Director of Consolidation and others

D. N. Jha, J.

The Petitioners have directed this petition under Article 226 of the Constitution of India. Challenging the order passed by the Deputy Director of Consolidation dated 1741972 remanding the case to the Settlement Officer (Consolidation) for deciding the dispute on merits.

The dispute between the parties related to plots Nos. 1 and 12 situate in village Basaiya, Pargana and Tahsil Salon, District Rae Bareli. In the basic year Parmeshwar Din, Sheo Dularey and Kamta, father of Petitioner No. 2, were recorded. Opposite party No. 4 who died during the pendency of the present petition, and whose legal representatives have now been brought on record had filed an objection under Section 9 of the U. P. Consolidation of Holdings Act (hereinafter to be referred as the Act). The defence taken by the Petitioners was that a suit having been filed by Ram Manohar under Section 209/229B of the U. P. Zamindari Abolition and Land Reforms Act, but that having been dismissed on 1651967 and the appeal preferred by Ram Manohar against the sale having abated a finality with respect to the dispute had been reached and hence the objection being in the nature of a fresh suit on the same cause of action was not maintainable. The Consolidation Officer after hearing the parties and considering the facts allowed the objection. An appeal was preferred by Petitioner and that was allowed by the Settlement Officer (Consolidation) by invoking the provision of order 22 Rule 9 C. P. Code which laid down that where a suit abates or is dismissed under this order no fresh suit on the same cause of action shall be brought. On revision preferred by Ram Manohar, opposite party the Deputy Director of Consolidation was pleased to set aside the order passed in appeal by the Settlement Officer (Consolidation) and remanded the case for decision on merits. This is how the matter has now been brought before this Court by the petitioners impugning the order passed by the Deputy Director of Consolidation.

I have heard the learned counsel for the parties. Sri Mohammad Husain appearing for the petitioners argued that on the suit having been dismissed on 165L67 the appeal had been preferred by Ram Manohar. In June 1968 Kamta died and no application for substitution had been made. The village came under consolidation by a notification issued on 1241969. The application for substitution was made on 8.7.1969 which was rejected on 24101969. The learned counsel, therefore, argued that in view of order 22 Rule 4 C. P. C. the appeal having abated in June 1968 on the death of Kamta the opposite parties could not file any objection under Section 9 being in the nature of a. fresh suit for the same cause of action. He placed reliance on Churra v. Baneshwar A. I. R. 1926 Allahabad 217, wherein a Full Bench of this Court had held :

"In order to work abatement of a suit or appeal it is not necessary for the Court to pass any order.''

The learned Counsel, therefore, argued that it was not necessary that orders of abatement ought to have been passed. The submission is that fresh proceedings were barred on the principle of res judicata as appeal stood already abated on the death of Kamta in June, 1968. I have given my anxious consideration to the argument advanced by the learned Counsel for the petitioners and I am constrained to observe that there is not much substance in the same. The finding given in the earlier suit would not operate as res judicata so far as the proceedings before the Consolidation Courts were concerned. A similar proposition had come up for consideration before a Division Bench of this Court in Kamal Ahmed v. Deputy Director of Consolidation 1972 A. L. J. 172, and it had been observed :

"Order 22 Rule 9 C. P. C. provides that where a suit abates or is dismissed under this order no fresh suit shall be brought on the same cause of action. This provision bars a second suit on the same cause of action. Firstly, the claim or objection under the U. P. Consolidation of Holdings Act is not a suit within the meaning of Order 22 Rule 9 C. P. C. In the second place, order 9 does not, expressly or by an implication, destroy or extinct the case of action itself. It only bars remedy of a suit on the same cause of action."

I am, therefore, not inclined to read order 22 Rule 9 as having the effect of destroying the cause of action. It cannot be read in consonance with the provision of Section 28 of the Limitation Act, 1908 which specifically provided for extinction of the cause of action when a suit for possession became barred by time. In my opinion, therefore, the abatement did not destroy the cause of action and it could be availed of if remedy was provided by any other means than a suit. In the instant case, therefore, Manohar could Very well ventilate his rights by invoking the jurisdiction under Section 9 of the Act.

No other point has been pressed. I, therefore, see no error in the order passed by the Deputy Director of Consolidation.

The result is that in view of the aforesaid discussion the petition fails and is accordingly dismissed. I, however, make no order as to costs.