SBCWP No.4212/2000. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.4212/2000. Ramkoli @ Raman Lal & Ors. Vs. Board of Revenue & Ors. Date of Order:- December 21, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Rajendra Prasad for the petitioners. Shri K.K. Mehrishi, Senior Advocate with Shri Sanjay Mehrishi for the respondents. ******* BY THE COURT:- This writ petition has been filed by the petitioners aggrieved by the order of the Board of Revenue dated 22/12/1998 by which, two appeals filed by respondents No.4 to 6 and 6/1 to 6/7 have been allowed. Shri Rajendra Prasad, learned counsel for plaintiff-petitioners has argued that while plaintiff filed a suit for declaration and correction in the revenue record, respondents filed suit for perpetual injunction. Suit filed by the petitioners was decreed and the suit filed by the respondents was dismissed. Respondents filed appeals in both the matters before the revenue appellate authority, which vide order dated 12/7/1996 dismissed both the appeals. Aggrieved thereby, respondents further filed two appeals before the Board of Revenue. Board of Revenue vide its order dated 22/12/1998 allowed both the appeals. It is SBCWP No.4212/2000. 2 contended that the order passed by the Board of Revenue is based on erroneous and illegal finding inasmuch as, the Board of Revenue has wrongly assumed that the suit filed by the petitioners i.e. Suit No.306/1976 was also also dismissed with regard to Order 9 Rule 9 CPC whereas, that suit was dismissed vide order dated 30/8/1976 in which, neither plaintiff nor defendants were present. In such a case, provisions of Order 9 Rule 4 CPC may not apply, which bars filing of the second suit on the same subject-matter. Learned counsel in support of his argument read those provisions for the benefit of the court. It is contended that the revenue appellate authority also dismissed both the appeals by specifically making reference of provisions of Order 9 Rules 3 & 4 CPC whereas, Board of Revenue did not apply its mind to those provisions. Impugned judgment passed by the Board of Revenue is liable to be set-aside. Shri K.K. Mehrishi, learned Senior Advocate assisted by Shri Sanjay Mehrishi appearing for the respondents has argued that petitioners had also earlier filed a writ petition bearing SBCWP No.2288/1999 but since he had in the meantime also filed review petition and when objection was raised by the respondents, he sought to withdraw that writ petition with liberty to file fresh one in view of the subsequent orders passed by the authority whereas, no subsequent order was passed by the authority and the review petition is still pending and the writ petition, SBCWP No.4212/2000. 3 which has been filed should also be dismissed however with the aforesaid liberty being allowed to the petitioners. It is also contended that petitioners should have filed two writ petitions rather than filing one writ petition because the Board of Revenue has allowed two appeals, which were allowed in two separate suits. Learned counsel submitted that the order passed by the revenue court in the suit of the petitioner dated 30/8/1976 was never placed before the Board of Revenue therefore the Board of Revenue cannot be said to have erred in allowing the appeal. Having heard learned counsel for the parties and perusing the material available on record, I find that the nature of preliminary objections, which have been raised by the learned counsel appearing for the respondents, cannot be appreciated either in facts or in law. Earlier writ petition of the petitioner namely; SBCWP No.2288/1999 was dismissed by accepting submission of the petitioner in toto and prayer of the petitioner was quoted in first para of the order was that “that he may be allowed to withdraw the writ petition to file a fresh one in view of subsequent orders passed by the authority”. Next sentence of the order is that “prayer is accepted”. That would mean that prayer was accepted in its entirety without there being any reservation. Another objection that rather than filing one writ petition, two writ petitions should have been filed also cannot be accepted because this writ petition was admitted long back on 18/9/2000 SBCWP No.4212/2000. 4 and now after more than a decade, the objection of this nature cannot be accepted. Impugned order passed by the Board of Revenue completely bellies application of mind. Board of Revenue did not even care to look into the order passed by the revenue appellate authority whereas, the said authority has clearly discussed the provisions of Order 9 Rules 3 & 4 CPC with the observation that provisions in Rule 8 CPC would be applicable only if defendants were to be present when the suit of the plaintiff was dismissed in default. In the present case, it is not even the case of the defendants that when they were present, the first suit was filed. In the circumstances, order of the Board of Revenue cannot be sustained. In the result, writ petition is allowed. Order of the Board of Revenue dated 22/12/1998 (Ann.3) is set-aside. The matter is remanded to the Board of Revenue to decide the matter afresh on merits. Parties are directed to appear before the Board of Revenue on 7/2/2011. A copy of this order be endorsed to the Registry of Board of Revenue for compliance. (MOHAMMAD RAFIQ) J. anil