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1962 DIGILAW 230 (RAJ)

Ram Singh v. Samla

1962-11-02

KHEM CHAND SHARMA, R.N.HAWA

body1962
This is an appeal against the order of the learned Sub-Divisional Officer, Bharatpur dated 20th November, 1961 by which he has accepted a review petition against his order dated 26th May, 1960 in a case for correction of entries in the village revenue records. The appellant preferred an application under sec. 136 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act). The respondent Samla was held not to have appeared despite notice and the case was ordered to proceed ex parte. On the basis of the evidence produced by the appellant, the correction applied for was ultimately granted on 26th May, 1960. The respondent Samla preferred a petition for reviewing that judgment on the ground that no proper service of the summons of the application preferred by the appellant had been made on him. It was found that notice of date 6th April, 1960 (the first date of hearing in the proceeding) was served not on the respondent personally nor on his authorised agent or lawyer nor on any adult member of his family but was affixed on his house when he was not present in the village but had gone out to some other village. The learned Sub-Divisional Officer, therefore, held that there had been a breach of the provision of secs. 59 and 60 of the Act and therefore a "fraud upon the procedure" and that it was an error on the face of the record. He, therefore, accepted the review as provided by sec. 35(2) of the Act and directed that his order dated 25th May, 1960 be set aside and the case be put up for hearing again in accordance with law. It is against this order of the Sub-Divisional Officer that this appeal has been preferred. He, therefore, accepted the review as provided by sec. 35(2) of the Act and directed that his order dated 25th May, 1960 be set aside and the case be put up for hearing again in accordance with law. It is against this order of the Sub-Divisional Officer that this appeal has been preferred. The contention on behalf of the appellant is that neither "fraud" was a valid ground for review nor was it necessary that the process server who went to make service of the summons for appearance on 6th April, 1960 should have made any special diligent efforts to serve the same on the respondent and that therefore when he did not find the respondent present in his house on the day when he went to the village, the affixing of the summons on the house of the respondent was a sufficient service in law and not at all an error apparent on the face of the record. In this behalf he has relied upon 1958 R.R. D. 22 and 1958 R.R.D. 30. In the first case, Moolya Vs. Asu Singh, the grounds taken for the review of the order was that some deception had been practised by the non-petitioner therein upon the petitioner and he could not, therefore, take all the pleas that were available to him. It was in this context that it was held that "fraud" could not be a ground for reviewing any judgment and that the proper and only remedy available was a suit for setting aside the same. The case is, therefore, clearly distinguishable from the present case. In the per-sent case what the learned Sub-Divisional Officer has observed is not that a fraud had been committed by any party or the order passed by him was sought to be reviewed on the ground of any "fraud" but that a "fraud" had been committed "on the procedure" This only means that there had been a breach of the clear procedure laid down by law and that it had not been followed as it should have been done. In other words, it could said that wh|at the learned Sub-Divisional Officer meant was only that some positive provision of law had been ignored and not followed. In the second case, Ishra Vs. In other words, it could said that wh|at the learned Sub-Divisional Officer meant was only that some positive provision of law had been ignored and not followed. In the second case, Ishra Vs. Okha, the learned Division Bench was interpreting the provisions of Rule 20 of the Rules framed under the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, the relevant portion whereof" If he could not be found or refused to accept the service of summons by affixing a copy of it on his usual residence"as against the provisions of Order 5, Rule 17 of the Civil Procedure Code, the relevant portion whereof is "Where the serving officer after using due and reasonable diligence cannot find the defendant". It was held on the significance of the use of the words "after using of due and Reasonable diligence" occurring in Order 5, Rule 17 of the C.P.C that the absence thereof in Rule 20 of the Rules framed under the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 saved the process server in revenue suits and proceedings from making "a real and substantial effort to find out the defendant" and that if a summon was affixed to a conspicuous place of the usual residence of the defendant it was proper. Apart from the circumstances of the case in which it was so held by the learned Division Bench it may be observed that sec. 59 of the Act which it was obligatory upon the learned Sub-Divisional Officer to follow in the present proceeding contains much more than was contained in Rule 20 referred to above. The relevant portion of sec. 59 of the Act reads as follows : "59. serving of summons. —Every summons shall be served — (i) by tendering or delivering a copy of it— (a) to the persons summoned, or (b) to his recognised agent or legal practitioner, or (c) to any adult male member of his family usually residing with him; or (ii) if any of the aforesaid persons cannot be found or refuses to accept the service of summons, by affixing a copy thereof to some conspicuous part of his usual or last known place of residence". It did require the process server to find out not only the person concerned but also his recognised agent or legal practitioner or any adult member of his family usually residing with him and to ensure that none of them was preferred to accept the service of the summons before he could get the authority to affix a copy thereof to some conspicuous part of the residence. There is nothing in the report of the process server endorsed on the back of office summons for appearance on 6th April, 1960 to denote that he had made any attempt to find the respondent or in his absence any adult member of his family usually residing with him. What he did was only to "find" that the respondent was not present in the village and had gone to another village. This in itself was not sufficient to hold that he had not been able to "find any of the aforesaid persons" as required by sec. 59(ii) of the Act. It may also be observed here that the expression "cannot be found" employed in this sub-sec. (ii) of sec. 59 cannot be taken to mean only that the defendant/ respondent was not present at his house when the process server reached there. If he is able to "find" his whereabouts from his usual place of residence, it will be deemed that he was able to "find" him out. In that case he would not be authorised to say that the defendant/respondent could not be "found" and he could not, therefore, legally affix a copy of the summons on his house, and for this very reason it could not be said that there had been a sufficient service on the defendant/respondent under the circumstances. In this connection we may also refer to 1961 RRD 149—Krishna Vs. Arjun Dass, to which one of us was a party, which though not a case under sec. 59 of the Act, laid down how and when substituted service, viz., affixing a copy of the summons on the house should be resorted to. Rulings of the various High Courts have been discussed in that case in this behalf. Arjun Dass, to which one of us was a party, which though not a case under sec. 59 of the Act, laid down how and when substituted service, viz., affixing a copy of the summons on the house should be resorted to. Rulings of the various High Courts have been discussed in that case in this behalf. On their basis it has been observed:– "Where a defendant is temporarily absent from home and is not represented at his house by an agent or male member of his family a judge is not justified in treating the fixing of a summons to his door as due service. The summons should be again sent to the defendants house to be served upon him when the inquiries made show that he is likely to be at home and to be found there. The wordings of sec. 59 of the Act reproduced above do not leave any room for doubt that it is what this provision of law requires to be done before affixing a copy of the summons on the residence, could be treated to be a sufficient service in law. The learned counsel for the appellant had also referred to AIR 1955 NUC p. 1640 and ILR (1953)3 Raj. 790. The former case has not been produced and therefore, we take no notice of it. The latter case, Jali Ram vs. Gopi Ram, however, goes against the stand taken on behalf of the appellant rather than to support it. In that case it was found that the learned judges deciding the appeal had not directed their attention to an important provision in the Limitation Act while deciding the point of limitation arising thereunder. It was, therefore, observed :— "It is indeed well established, in our opinion, that an error within the meaning of O. 47, R. 1, C.P.C. need not be limited to one of fact but it may be an error of law also. But the error must be such that it must not require a research and must not be one relating to which it may be possible to hold more opinions than one. But the error must be such that it must not require a research and must not be one relating to which it may be possible to hold more opinions than one. Where an error, such as we have referred above is to be found, we are of opinion that it would meet the requirements of O. 47, R. 1, C.P.C. and would be more an error which merely relates to an exposition of law." Such an error was held to be "a more radical error and amounting to completely ignoring the positive rule of law" and "so manifest or patent that it admits of no doubt or dispute, such an error of law is one on the basis of the record and is sufficient to justify the condition of O. 47. R. 1, C.P.C." Sec. 88(2) of the Act read with sub-sec. (3) thereof authorises a revenue court or officer to review any order passed on any of the grounds mentioned in R. 1 of O. 47 First Schedule to the Code of Civil Procedure. It has been discussed earlier that the provisions of law contained in sec. 59 of the Act were found to have been completely ignored in the present case while deciding the case ex-parte. The learned Sub-Divisional Officer was, therefore, perfectly right in accepting the review petition as he has done. Yet again, the learned counsel for the appellant has made an attempt to urge that when vide sec. 65(2) of the Act the respondent could have applied within 30 days from the date of the order with which he was aggrieved to have it set aside on the ground that he was prevented by any sufficient cause from appearing on the day of hearing, he should have adopted that procedure and should not have preferred a petition for review under sec. 86(2) of the Act on the 90th day of the order after having not acted diligently all this time. The learned counsel for the appellant does not, however, urge that the petition was barred by time. He does not also deny that the respondent could not at any time within the period of limitation allowed to him, which was 90 days. The only question, therefore, to be decided with reference to this argument is whether the provisions of sec. The learned counsel for the appellant does not, however, urge that the petition was barred by time. He does not also deny that the respondent could not at any time within the period of limitation allowed to him, which was 90 days. The only question, therefore, to be decided with reference to this argument is whether the provisions of sec. 65(2) were in any way derogatory to those of 86(2) of the Act and, therefore, no petition for review could be preferred when an application for having the order set aside could have been preferred within 30 days. We have bestowed our careful consideration on it. We do not find anything to be able to hold that the two courses prescribed by these two provisions of law are to the exclusion of each other. No doubt, none of these provisions have got any "non-abstente clause" "notwithstanding anything to the contrary......etc. But still it cannot be said that the one remedy excludes the other. It is a very sound principle of the interpretation of any statute that all the provisions therein should be allowed to operate harmoniously and without letting any of them coming into conflict with the other. Under this rule of interpretation, there cannot be any room for doubt that the legislature in its wisdom thought it fit to provide two remedies to a party. The right of having an order reviewed is a general right available against each and every order, of course, within the limits of the provisions laid down therein. The right of having an ex-parte order set aside within 30 days therefrom is a special remedy available if the party be able to convince the court that there were sufficient reasons preventing him from appearing at the time of the hearing. In result, there is no substance in this appeal, which hereby fails.