Ram Govind v. Gaon Sabha — 1982 DIGILAW 83 (ALL)

JUDGMENT Kaushal Kishore, Member - These are six similar references dated December 27, 1974 which though not connected, yet involve common law points and display same circumstances, and arise out of restoration orders passed by the learned trial court on August 24, 1974 in six cases under Section 229-B of the U.P. Z.A. and L.R. Act, separately, setting aside the ex parte decrees. The learned Commissioner, Gorakhpur Division, Gorakhpur, by references dated December 27, 1974 made separately in each of the six revision petitions, has recommended that the impugned order dated August 24, 1974 be set aside. I propose to decide these references by a common judgment in view of similar circumstances of the six cases. 2. I have heard the learned counsel for six applicants and learned D.G.C. (R) for the Gaon Sabha and State which are the Opposite parties in all the six revisions, and have also perused the record. The six references Nos. 256, 257, 259, 262, 280 and 282 of 1974-75, Azamgarh relate to revisions filed by (1) Ram Govind and Singhasan, (2) Kidai. (3) Nagesar, (4) Birja and others, (5) Kesha and Jang Bahadur, and (6) Jangi respectively, in respect of their Respective suits under Section 229-B of the U.P. Z.A. and L.R. Act decreed on various Rates. All these cases were filed before the trial court on September 8, 1970 on the basis of patta granted by former Zamindars Before vesting while the plaintiffs were recorded in Varg-4 only. The six revisionists/plaintiffs above mentioned in that order, claimed Sirdari rights on plot Nos. (1) 392(M)/3.000 acres, (2) 396/3,000 acres, (3) 210(M)/4.000 acres and 83/-are .910 acre, (4) 393(M)/3,000 acres, (5) 18(M)14.000 acres and (6) 122(M)/2.423 acres, respectively. In all the cases, State and Gaon Sabha through Pradhan were made defendants. On behalf of the State and the Gaon Sabha, the D.G.C. hied his memo of appearance on September 28, 1970 in the six cases. Written statement on behalf of the State was filed in all the six cases some day, duly signed by the Collector on September 17, 1970, September 18, 1970, as well as by the D.G.C. (R). On behalf of the State and the Gaon Sabha, the D.G.C. hied his memo of appearance on September 28, 1970 in the six cases. Written statement on behalf of the State was filed in all the six cases some day, duly signed by the Collector on September 17, 1970, September 18, 1970, as well as by the D.G.C. (R). Notice to the Gaon Sabha was served on Birbal Pradhan Gaon Sabha, in all the cases but no appearance was put in on behalf of the Gaon Sabha in the real sense as no written statement on behalf of the Gaon Sabha either contesting the cases or admitting the claims were filed. After evidence was adduced by the plaintiffs, the D.G.C. (R) noted on the margin of the order-sheets of two cases, of Ram Govind and another and Kesha and another, on September 1, 1971 and in the remaining four cases on September 3, 1971, that he would produce 'no DWs'. The six cases of Ram Govind and another, etc. in the above order, were decreed in favour of the plaintiffs on September 3, 1971. October 27, 1971, October 25, 1971, October 27, 1971 September 22, 1971 and October 27, 1971 respectively. 3. On July 6, 1973, applications were moved by the Lekhpal as secretary L.M.C., also signed by the D.G.C. (R.), that the Pradhan, Gaon Sabha had colluded with the plaintiffs and so did not contest the cases, failed to protect the Gaon Sabha property and the plaintiffs and the Pradhan in collusion, played fraud on the court and obtained decrees against the Gaon Sabha, that lie the secretary on receiving orders, was filing the restoration applications and also prayed that the delay be condoned under Section 5 of the Limitation Act, that the cases be restored and the Gaon Sabha be allowed to contest the cases. The learned trial court by order dated August 24, 1974, allowed restoration of all the cases. The six revisionists have conic up against this order. 4. The learned counsel for the revisionists argued in ail the six cases jointly, that the restoration applications were time-barred, that the decrees were not ex parte and the only remedy lay with the Gaon Sabha by way of appeals, that no details of the alleged fraud were revealed and that there was actually no fraud at all. 4. The learned counsel for the revisionists argued in ail the six cases jointly, that the restoration applications were time-barred, that the decrees were not ex parte and the only remedy lay with the Gaon Sabha by way of appeals, that no details of the alleged fraud were revealed and that there was actually no fraud at all. He argued that me recommendation of the learned Commissioner, Gorakhpur Division, Gorakhpur, was proper and should be accepted. The learned Commissioner has found that the decree passed by the trial court were not ex parte against the Gaon Sabha, that no fraud on the court was committed, that no ground existed for the court to act under Section 151 C.P.C. and that the competence of die Lekhpal/secretary L.M.C. to move the restoration application after two years was not acceptable. 5. The learned D.G.C. (R) for the Gaon Sabha argued that collusion was there, as can be seen from the extract Khatauni 1374F showing Rani Govind Sirdar in Varg-2 while after the decree Amaldaramad was carried out in the Khatauni entry in Varg-4, that fraud was also made out since the court was made to believe that the Gaon Sabha had been duly served, that these were no doubt ex parte decrees as the L.M.C. was not informed, that notice was sent without copy of the plaint and served on the Pradhan who colluded with the plaintiffs, appeared as PW and admitted the claim of the plaintiffs without permission of the S.D.O. so that the L.M.C. remained without knowledge of the ex parte decrees. 6. I have considered in depth the aspects involved in these cases. No doubt, the stakes were high in ail over 20 acres land was involved and it is no surprise that the Pradhan Birbal Chowdhary, Lekhpal secretary Sukhrani Ram and the D.G.C.(R) in the trial court, Sri Narendra Nath Singh, all colluded with the plaintiffs to give them undue advantage of the legal process and of unnoticed omissions. Had good sense not prevailed upon the Lekhpal even after two years, the mischief would have remained unknown and unchallenged. I agree with the learned Commissioner that there is no explanation from the Lekhpal/secretary and the D.G C. (R) for the delay of two years but this does not really make any difference. Explanation, if any, should have been sought/expected from the Gaon Sabha/L.M.C. who was the real defendant. I agree with the learned Commissioner that there is no explanation from the Lekhpal/secretary and the D.G C. (R) for the delay of two years but this does not really make any difference. Explanation, if any, should have been sought/expected from the Gaon Sabha/L.M.C. who was the real defendant. Since the learned trial court was satisfied about the fraud and the decrees against the Gaon Sabha being ex parte and restored the cases, no occasion arose to find out when the L.M.C. was called in meeting and was informed of the ex parte decrees and the fraud. Sit there is no indication that the L.M.C. had information of the cases and of ex parte decrees at any point of time except probably shortly before July 6, 1973 when restoration applications were filed by the Lekhpal/secretary under some order, these decrees must be held ex parte against the Gaon Sabha. It is also likely that the L.M.C. was never at all informed of this litigation and ex parte decrees, for no resolution of the L.M.C. on the subject has come to notice, it is erroneous to presume that since the D.G.C.(R) had filed his memo for the Gaon Sabha also, the latter was duly informed. As soon as the D.G.C. (R) filed the written statement on behalf of the State and no written statement on behalf of the Gaon Sabha, it became clear that he had no instructions from the Gaon Sabha. The cases obviously proceeded ex parte against the Gaon Sabha. It may be observed here that under para 128 of the Gaon Sabha and Land Management Committee Manual, the conduct of the Gaon Sabha litigation shall not depend upon the individual petition of the chairman of the L.M.C. but shall be a matter of a resolution of the L.M.C. as a whole'. As regards admitting the claim of a plaintiff against the interest of the Gaon Sabha, even the L.M.C. does not have power to authorise its chairman (Pradhan) to do so. As regards admitting the claim of a plaintiff against the interest of the Gaon Sabha, even the L.M.C. does not have power to authorise its chairman (Pradhan) to do so. It is clearly provided under rule 110-A(2) of the U.P. Z.A. and L.R. Rules that the chairman of the L.M.C. or any member authorised in this behalf by the chairman or L.M.C. shall not admit a claim or enter into a compromise or an agreement with the opposite party in any suit or proceedings or withdraw any suit or proceeding without obtaining prior permission of the Assistant Collector in-charge of the sub-division or the Tahsildar, not being the presiding officer of the court in which the suit or proceeding is pending. Even if it is assumed that the Pradhan did not appear as Pradhan when deposing as PW, it was necessary that the matter should have been put up to the L.M.C. in accordance with R. 110 (-A)(1) or 110-AAA as the case may be, to authorise any other member under a resolution tor conduct of the litigation. 7. Appearance of the Pradhan and the Lekhpal as PWs clearly indicated absence of any conduct of litigation by the L.M.C. and the obvious conclusion is that the court was being made to believe that the Gaon Sabha had been duly served with notice while it was not so. Here, fraud on the court cannot escape notice and the learned Commissioner was wrong in finding no ground for the trial court to act under Section 151 of the C.P.C. It was rightly argued in the Commissioner's court that the Lekhpal/secretary of the L.M.C. under rule 111-F had the power and duty to attend to all matters pertaining to the litigation of the Gaon Sabha, including filing of the restoration applications, notwithstanding any long delay. It was for the court to consider whether the delay was explained or whether the question of condonation of delay arose at all. Considering the applications under Section 151 C.P.C. on the ground of fraud, the delay becomes immaterial. Considering application under Order IX Rule 13 C.P.C. on the ground of ex parte decrees being passed against the Gaon Sabha, and the L.M.C. having no knowledge of the ex parte decrees, again the question of delay did not arise. Considering the applications under Section 151 C.P.C. on the ground of fraud, the delay becomes immaterial. Considering application under Order IX Rule 13 C.P.C. on the ground of ex parte decrees being passed against the Gaon Sabha, and the L.M.C. having no knowledge of the ex parte decrees, again the question of delay did not arise. The revisionist never established before the trial court on which date, if any, the L.M.C. was informed of the ex parte decrees. If the court just acted under Section 151 C.P.C., delay and its condonation did not remain important. 8. The peculiarly collusive decrees in these cases necessitate mention of the desirable requirement on the part of the trial courts to be careful when the Gaon Sabha is a party to the suits. It is common knowledge that the Legislature have progressively provided for suo moto actions by the revenue authorities when the Gaon Sabha or State functionaries fail in their duty to protect, maintain and let in public interest the Gaon Sabha property in accordance with law. The revenue courts are expected to understand the intention of the legislature and act in a manner which is not inadvertently prejudicial to the interest of these corporate bodies. The casual attitude of the trial court when hearing these cases and passing the decrees on various dates mentioned above, can not go unnoticed. The trial court should have been cautious against passing ex parte decrees against the Gaon Sablia through his inattention to details. The Assistant Collector, First Class who are entrusted to decide such cases are expected to know the provisions relating to conduct of the Gaon Sabha litigation, particularly the limited powers of the D.G.C., Pradhan and the Lekhpal, their obligation towards the interest of the Gaon Sabha and particularly the provisions under rule 110-A, rule 110-AAA and Section 127-13(4) of the U.P. Z.A. and L.R. Act/Rules. The court has a power and duty also to ascertain truth. It is surprising how the court failed to see through the game of the plaintiffs on finding the Pradhan and Lekhpal both appearing for the plaintiffs when already the State filed the written statement contesting the claim. He could have asked the P.Ws. Pradhan and the Lekhpal whether the L.M.C. (in meeting) had been informed. He could have asked the D.G.C. if he had instructions from the Gaon Sabha. He could have asked the P.Ws. Pradhan and the Lekhpal whether the L.M.C. (in meeting) had been informed. He could have asked the D.G.C. if he had instructions from the Gaon Sabha. Only this much would have revealed the facts. The D.G.C did not have discretion not to produce any D.Ws. or evidence on behalf of the State or the Gaon Sabha. He could do so only under instructions and it should have been proper if he had stated that under instructions of the Collector/Gaon Sabha, he was not to produce any evidence for the State or for the Gaon Sabha. However, those cases provide only an example which needs be brought to the notice of the revenue administration as a possibility of all the functionaries agents or the L.M.C. entering collusion against it, for such precautionary measures as may be deemed fit. As regards the part played by the trial courts, my considered opinion is that a few court questions for ascertaining correct and true position can never be taken to be filling a lacuna in the evidence produced by the State or the Gaon Sabha. 9. The conduct of the D.G.C.(R.) in the trial court also requires a mention. It is seen that the D.G.C. after filing the written statement signed by the Collector merely withdraw himself when time came for evidence on behalf of the State. There is no explanation why he could not produce anyone on behalf of the State or the Gaon Sabha. If he could not produce the Lekhpal who was obviously hostile, he could bring this fact to the notice of the court and require attendance of the Supervisor Kanungo as P.W. for the State. If he had obtained instructions from the Gaon Sabha, he should have filed a written statement for the Gaon Sabha and if not, he should have obtained necessary time from the court. If he was not conducting the case on behalf of the Gaon Sabha, his filing the memo on September 28, 1970 in a routine manner, as obviously it was, was highly objectionable. Some important duties and powers of the D.G.C. have been mentioned in the paragraph above also. If he was not conducting the case on behalf of the Gaon Sabha, his filing the memo on September 28, 1970 in a routine manner, as obviously it was, was highly objectionable. Some important duties and powers of the D.G.C. have been mentioned in the paragraph above also. It was wrong on the part of the D.G.C. not to produce any evidence for the State and the Gaon Sabha and keep the court in the dark about his having any instructions or not from the Collector or the Gaon Sabha. This was made clear by the restoration application filed by the D.G.C. and Lekhpal two years after on the ground of fraud on the court and decree being ex parte against the Gaon Sabha. This has clearly shown that in the fraud played on the court, the D.G.C. was also a party through his silence about no revised instructions from the Collector and about no information to the Gaon Sabha, another important defendant in the cases, whom he pretended to represent but did not represent. It is a pity that the Pradhan, Lekhpal and the D.G.C.(R.) all colluded with the plaintiffs and the only sufferer was the Gaon Sabha but the law gives protection to a party against the lapses of his inefficient agents or representative. The D.G.C. and the Pradhan both can be deemed but limited Pairokars for the Gaon Sabha having limited powers and having liability to act under instructions of the L.M.C. In a ruling by the Hon'ble Supreme Court reported in A.I.R 1981 S.C. 1400 it has been held that no party is to suffer for the inaction, deliberate omission or mis-demeanour of his agent. Whatever be the mistakes of these three agents of the Gaon Sabha, viz., D.G.C., Pradhan and the Lekhpal, the interest of the Gaon Sabha cannot be allowed to suffer merely for their deliberate inaction. 10. The above discussion leaves no doubt about the decrees being ex parte against the Gaon Sabha and fraud being played on the court, in consequence, the trial court's order dated June 24, 1974 is found to be fully justified and no illegality or material irregularity in the exercise of jurisdiction by the trial court is made out. In the result, the six references are not found acceptable and the revision petitions are hereby dismissed. 11. In the result, the six references are not found acceptable and the revision petitions are hereby dismissed. 11. Let a copy of this judgment may be sent to the Secretary, Revenue Department, Uttar Pradesh Shasan, Lucknow, for considering such guidance to the revenue trial courts as deemed fit. A copy may also be sent to the Collector, Azamgarh for looking into the conduct of the D.G.C.(R), the Lekhpal and the Pradhan who were jointly prepared at the time to lose 20 acres of precious land of the Gaon Sabha. 12. This order will govern reference Nos. 256, 282, 259, 280, 262 and 257 of 1974-75, Azamgarh. The records of the courts below be returned without further delay.