IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL. Writ Petition (M/S) 2057/2009 (Old No. WP(M/S) 6417/1979) Ram Murti Sangar .. Petitioner. Versus Board of Revenue U.P. Allahabad and others … Respondents. Sri Sharad Sharma, Senior Advocate, assisted by Mr. V.K. Kaparuwan, Advocate for the petitioner. Mr. Subhash Upadhyay, Standing Counsel for the State/ Respondent Nos. 1,2 and 6. Mr. Dinesh Gahtori, Advocate for the respondent No.7. (Hon’ble B.S. Verma, J) Heard Sri Sharad Sharma, Senior Advocate, assisted by Mr. V.K. Kapuruwan, learned counsel for the petitioner, Sri Subhash Upadhyay, learned Brief Holder for State/respondent Nos. 1,2 and 6 and Mr. Dinesh Gahtori, Advocate for respondent No.7. By means of this petition, the petitioner has prayed for issue of a writ in the nature of certiorari quashing the orders dated 12-6-1979 and 27-1-1975 passed by respondent Nos. 1 and 2 respectively. The learned counsel for the respondent No.7 has submitted that the petition be disposed of finally, as since the controversy involved in the petition is a legal one. Perusal of record reveals that petitioner moved an application U/S 144 of C.P.C. for the restitution of possession over the plot in dispute before the S.D.O. Dehradun. The petitioner sought to implead the respondents 4 and 5 in the restitution application by moving an amendment application under Order 6, Rule 17 C.P.C. The said application was opposed by 2 respondent No.3 on the ground that the provisions of Order 6, Rule 17 C.P.C. are not applicable to proceedings U/S 144 C.P.C. The trial court upheld the objection and rejected the amendment application of the petitioner as not maintainable. The Board of Revenue decided the question of maintainability of the application first by its order dated 7.3.1969 holding that the application was not maintainable. Aggrieved by the said order petitioner preferred an appeal before the Additional Commissioner, who allowed the appeal of petitioner and held that the application was maintainable and directed the trial court to proceed with the case on merit. Further contention of the petitioner is that in order to delay the delivery of possession, the respondent No.3 also moved an amendment application seeking to add a fresh reason regarding the non-maintainability of the restitution application. The S.D.O. allowed the amendment application of respondent No.3 vide impugned order dated 27.1.1975. The petitioner preferred revision against the order dated 27.1.1975. The Additional Commissioner, who heard the revision, made a reference to the Board of Revenue for setting aside the order of S.D.O. and the Board of Revenue rejected the reference vide order dated 12.6.1979. I have perused the order of Board of Revenue and find that Board of Revenue exceeded its jurisdiction and gave some observations on merit. It is well settled law that while deciding the amendment application court cannot go on the merit of the case. The petitioner has filed the application U/S 144 C.P.C. for the restitution of possession over the some 3 plot before the trial court in the year 1968 and these proceedings have been languished by the parties for a long period on the one pretext or the other. The Board of Revenue also lost sight of this fact that the amendment application of petitioner was rejected by the S.D.O. and at the same time, he allowed the amendment application of respondent No.3 for impleadment on the same facts. Therefore, the impugned order dated 12.6.1979 passed by Board of Revenue is set aside on this ground alone. The reference is accepted. The S.D.O. concerned is directed to decide the application of the petitioner filed U/S 144 C.P.C. after considering the objection filed against it, on the basis of legal argument, expeditiously, within three months from the date of production of certified copy of this order. With the aforesaid observations, the writ petition is finally disposed of. Dated: 30-8-2010 (B.S. Verma, J.) ISB