Ram Swaroop vs State of Rajas than and Others

Dr. Vineet Kothari, J.—Heard learned counsel for the petitioner. By the impugned order dt. 18.08.2009, the learned Board of Revenue has held that the present petitioner, Ram Swaroop S/o late Sh. Nagar Mal, should go before the first revenue Court of learned S.D.O., Churu only, and in the pending Revenue Suit No. 7/09- Smt. Geeta Devi vs. Ram Swaroop and State of Rajasthan, he (defendant) can raise his contentions in the stay application filed by the respondent-plaintiff, Smt. Geeta Devi.

Being aggrieved by this order, the petitioner. Ram Swaroop has approached this Court by way of present writ petition under Article 227 of the Constitution of India. The revenue suit in question was filed by the plaintiff-respondent Smt. Geeta Devi against the present petitioner, Ram Swaroop for declaration, partition and permanent injunction. The said revenue suit as well as the stay application filed along-with the suit are still pending consideration before the learned S.D.O., Churu.

The only grievance raised by the petitioner in the present writ petition is that the learned Board of revenue was rather swayed by its own decision rendered by it in the case of Premvati & Ors. vs. Ramkhiladi & Ors. (Revision No. 2009/4153) reported in 2008 (2) RRT P. 1330, referred to in para 14 of the impugned order, and held that instead of filing appeal against the interlocutory order of learned S.D.O., Churu, the petitioner should approach the first revenue Court of S.D.O. itself and raise his contentions for rejection of stay application filed by the plaintiff-respondent, Smt. Geeta Devi.

Mr. J.L. Purohit, Sr. Advocate, assisted by Mr. N.R. Budania, learned counsel for the petitioner urged that before the learned Board of Revenue, the Supreme Court decision in the case of A. Venkatasubbiah Naidu Vs. S. Challappan and Others, , was referred to and relied upon by the learned counsel for the petitioner, in which the Apex Court has held that against the interlocutory orders passed under Order 43 Rule 1 CPC read with Order 39 Rule 1 CPC, such interlocutory orders are appealable before the next higher appellate authority. He, therefore, urged that the learned Board of Revenue has erred in directing the present to go before the first revenue Court of learned S.D.O., Churu itself since appeal itself was maintainable as per aforesaid Supreme Court decision and the appellate authority ought to have decided the stay application filed by the plaintiff-respondent, which was being opposed by the present petitioner, Ram Swaroop.

None appears on behalf of respondents despite service, though names of Mr. S.K. Punia and Mr. Sundeep Bhandawat have been shown in the cause list.

Having heard the learned counsel for the petitioner and upon perusal of the impugned order dt. 18.08.2009, this Court is of the opinion that there is no error in the impugned order and no disrespect has been shown by the Board of Board of Revenue to the Hon''ble Supreme Court''s decision in the case of A. Venkatasubbiah Naidu (supra).

It is true that the learned Single Member of Board of Revenue followed the Board of Revenue''s own decision in the case of Premvati (supra), in which it was held by the Board of Revenue that for opposing the stay application filed by the plaintiff-respondent, the defendant-petitioner should contest such stay application before the first revenue Court itself; and even though an appeal against such interlocutory order may be maintainable before the Revenue Appellate Authority yet the proper course for the defendant-petitioner was to oppose the stay application before the first revenue Court itself. The Hon''ble Supreme Court in the case of A. Venkatasubbiah Naidu (supra), while holding that such appeal is maintainable against the interlocutory order, has never said that filing of appeal is the only course open to the defendant. Therefore, two judgments before the learned Board of Revenue in the case of Premvati (supra) by the Board of Revenue itself and the Supreme Court decision in the case of A. Venkatasubbiah Naidu (supra), are not in conflict with each other at all. It was/is, therefore, misnomer on the part of the petitioner to contend that the impugned order dt. 18.08.2009 of the Board of Revenue is contrary to the Apex Court decision in the aforesaid case. The learned Single Member of Board of Revenue cannot be said have committed any error in relegating back the defendant-petitioner before the learned S.D.O., Churu itself to oppose such stay application filed by the plaintiff-respondent notwithstanding the fact that the appeal against the same could have been held maintainable. These two situations and directions of the learned Board of Revenue, therefore, does not fall foul with the Hon''ble Supreme Court''s decision at all. In fact, approaching the higher courts like in the present case, the matter has reached this Court by way of present writ petition under Article 227 of the Constitution of India, seriously and adversely affects the trial of the revenue suits, which remain pending for long years together on account of such remedies availed, before the higher courts in hierarchy, which deserves to be checked and, therefore, it was only proper for the learned Board of Revenue to relegate the present petitioner before the learned S.D.O., Churu itself for opposing the stay application filed by the plaintiff-respondent on appropriate grounds he wanted to raise before the said Court. In view of above, the impugned order of Board of Revenue dt. 18.08.2009 is found to be perfectly legal and valid and calls for no interference in the present writ petition filed by the petitioner-defendant under Article 227 of the Constitution of India. The present writ petition is found to be devoid of any merit and the same is hereby dismissed. No costs. A copy of this order be sent to the concerned parties and the revenue courts below forthwith.