Dukhanti v. Gaon Sabha — 1981 DIGILAW 1092 (ALL)

JUDGMENT Kaushal Kishore, Member - In this reference dated August 1, 1974, the learned Additional Commissioner, Gorakhpur Division, Gorakhpur has recommended that the order of the learned trial court dated November 8, 1973 passed in a case under Section 229-B of the U.P. Z.A. and L.R. Act may be set aside. By the impugned order an ex parte decree dated May 14, 1971 against the Gaon Sabha had been set aside. 2. I have heard the learned counsel for both the parties and have also perused the record. 3. The learned counsel for the revisionist has argued that there was no authorisation of L.M.C. in favour of Shyam Behari (who was only Up-Pradhan) to conduct litigation on behalf of the L.M.C. He further argued that there was no resolution of L.M.C. for filing restoration application, that the DGC(R) had put in appearance on behalf of the State as well as the Gaon Sabha on August 28, 1969 and so the decree dated May 14, 1971 could not be held to be ex parte against the Gaon Sabha. As to the abatement under Section 5(2) of the U.P. C.H. Act, he argued that there was no question of abatement until the restoration was finally upheld. 4. The learned D.G.C.(R) has argued that Shyam Behari had been Up-Pradhan and officiating as Pradhan because the Pradhan Sri Ajaib had expired two years back when the restoration application was filed on April 17, 1972. Although no resolution of the L.M.C. had been brought on record, it was clear from the affidavits of Shyam Behari dated April 17, 1972 and September 18, 1972 that he had the authority to act on behalf of the L.M.C., being officiating Pradhan, the senior-most surviving member of the L.M.C. and also having implicit authorisation from the L.M.C. The revisionist has not been able to show that the view of the L.M.C. was to the contrary. The circumstances strongly indicate that just as officiating Pradhan, Shyam Behari had the authority, without depending on any other authorisation or resolution. 5. However, the most engaging question should be whether the Gaon Sabha or the L.M.C. was informed of the ex parte decree or not. In this connection, it is observed that the position of the Pradhan and the D.G.C.(R) has been settled already, in that they are not full fledged legal representatives of L.M.C. or Gaon Sabha. 5. However, the most engaging question should be whether the Gaon Sabha or the L.M.C. was informed of the ex parte decree or not. In this connection, it is observed that the position of the Pradhan and the D.G.C.(R) has been settled already, in that they are not full fledged legal representatives of L.M.C. or Gaon Sabha. Although the Pradhan or D.G.C.(R) can be served with the notice meant for L.M.C., this does not mean an absolute fulfilment of requirement of service of notice on L.M.C. for the simple reason that the State has not established a full representative of the L.M.C. by any statute. L.M.C. having the entity of a person has been created by the U.P. Z.A. and L.R. Act, but the Pradhan even though being Chairman of the L.M.C., has his own limitations by virtue of Rule 110-A(2) of the U.P. Z.A. and L.R. Rules and the position of the D.G.C.(R) is none better under Section 122-B(4) of the U.P. Z.A. and L.R. Act. There is no law that the L.M.C. is bound by default of these two limited representatives and, in the circumstances, on service of notice on the Pradhan or D.G.C.(R) on behalf of the Gaon Sabha, it remains open to the L.M.C. to rebut that it had not been informed. 6. In the instant case, therefore, the presumption of the learned Additional Commissioner that since the D.G.C.(R) was present the L.M.C. should be deemed to have information must be subject to rebuttal by the Gaon Cabha, which has successfully been done by the officiating Pradhan Shyam Behari. It is also a settled principle that in case a counsel has no instructions from his client, he cannot be deemed to represent the party. The learned D.G.C.(R) has argued that the D.G.C. had filed his Vakalatnama in a routine manner in the trial court and filed the written statement on behalf of the State only and not on behalf of the Gaon Sabha. It is not shown that the D.G.C. had any instructions from the Gaon Sabha concerned. The service on the Gaon Sabha through D.G.C. or the Pradhan is also not proved. The D.G.C. did not mention in his name for which Gaon Sabha he appeared. It is not shown that the D.G.C. had any instructions from the Gaon Sabha concerned. The service on the Gaon Sabha through D.G.C. or the Pradhan is also not proved. The D.G.C. did not mention in his name for which Gaon Sabha he appeared. The suit had been dismissed in default on January 12, 1970 and a restoration application was filed on February 9, 1970 but no notice to Gaon Sabha through Pradhan or D.G C. was sent. No doubt, the suit proceeded ex parte against the Gaon Sabha and was decreed on May 14, 1971. It is an incorrect and risky presumption that since the D.G.C. for the State was present, he must automatically be deemed to be present on behalf of the Gaon Sabha. No proceeding or transaction in this litigation shows that the D.G.C. was representing the Gaon Sabha on its instructions. It is obvious that he filed the printed memo in a routine manner without any instructions from the Gaon Sabha. No doubt, he was charged with the duty to inform the Gaon Sabha and obtain instructions which he apparently failed to do. Again, the Gaon Sabha should not be loser on account of the default of its counsel the D.G.C.(R). In the ruling reported in 1981 A.I.R. SC page 1400, the Hon'ble Supreme Court have held that no party is to suffer for the inaction, deliberate omission or misdemeanour of his agent. In the case discussed, it amounted to the principle that no party should suffer for the default by the counsel, like dismissal in default. This ruling fully applies to the present case. 7. The learned counsel for the applicant has argued that a finding on authority of Up-Pradhan Shyam Behari was necessary which the trial court failed to give. In support, he cited a ruling reported in 1981 A.L.J. (NOC No. 137). In that case, a lekhpal had filed an application under Order IX, Rule 13 C.P.C. without proper authority. However, this case must be distinguished from the reported case because it was not a lekhpal being the Secretary of the L.M.C. or may outsider, but the officiating Pradhan who had a regular authority to act in place of the deceased Pradhan. A finding is ' needed, even according to the ruling, when the person prima-facie is not authorised. However, this case must be distinguished from the reported case because it was not a lekhpal being the Secretary of the L.M.C. or may outsider, but the officiating Pradhan who had a regular authority to act in place of the deceased Pradhan. A finding is ' needed, even according to the ruling, when the person prima-facie is not authorised. Here Up-Pradhan cum-officiating Pradhan was prima facie authorised and so no question of any finding arises. 8. In the circumstances and the legal position discussed, there is no doubt left that the application under Order IX, Rule 13 C.P.C. was maintainable and that the finding of fact that the Gaon Sabha had no knowledge of the ex parte decree against it, need not be interfered with. It is also found that the learned trial court did not commit, any illegality in the exercise of jurisdiction in passing the impugned order. 9. Accordingly, the reference need not be accepted and the revision is found to be without force and is dismissed.