Ram Nain Misra v. DDC Others — 1987 DIGILAW 890 (ALL)

JUDGMENT K.N. Misra, J. 1. Briefly stated, the facts of the case are that a dispute was registered in C. H. Form No. 5 in respect of Khata No. 143 of village Daulatpur, Pargana Aldemau, tahsil Kadipur, District Sultanpur regarding title and share of the claimants. In the basic year Khatauni, name of Ram Sunder, Ram Sevak and Bachcha and Ram Charitra were recorded as cotenure holders. In reconciliation proceedings before the Assistant Consolidation Officer a compromise was filed in respect of said holding and the Assistant Consolidation Officer vide order dated 16.10.1971 determined shares of the parties as per compromise filed before him An appeal was filed against said order by opposite party No. 2 Ram Charitra before the Assistant Settlement Officer, Consolidation asserting that he was not party to said compromise nor he has signed it. The Assistant Settlement Officer Consolidation allowed the appeal vide order dated 6.5.1974 and remanded the case to the consolidation Officer for deciding it afresh fixing 14.5.1974 for appearance of parties before the consolidation officer. It has been averred in the writ petition that Ram Charitra in his appeal had not Impleaded petitioners Ram Nain, Raja Ram and Ram Chandra son of Bachcha and therefore, no notice was issued and served on them in said appeal. It has further been averred that the other respondents in the appeal were also not served with notices and the Assistant Settlement Officer, Consolidation passed said order dated 6.5.1974 remanding the case to the consolidation officer behind the back of petitioners, who were not served with any notice in said appeal. After remand of the case, the consolidation officer vide order dated 225.1975 directed the name of Bachcha, father of petitioner Nos. 1, 2 and 3 to be expunged from the said holding and held Ram Charitra to be entitled to half share in it. He further held that the opposite party No 3 Mata Pher as cotenure holder in the disputed holding having l/4th share in it and that Ram Sunder and Ram Sevak are entitled to get l/8th share each. Since this order was passed ex parte against the petitioners, and, as such, on coming to know about it an application for setting aside said order was moved by the petitioner No. 1, 2 and 3 and 5 to 12. The petitioner No. 4 also filed a separate application for setting aside the order. Since this order was passed ex parte against the petitioners, and, as such, on coming to know about it an application for setting aside said order was moved by the petitioner No. 1, 2 and 3 and 5 to 12. The petitioner No. 4 also filed a separate application for setting aside the order. A separate application was also filed by petitioner Nos. 13 and 14. Thus, all the petitioners filed applications for setting aside aforesaid order dated 22.5.1975 passed ex parte against them, asserting that they had no notice or knowledge about the proceedings in the case. They had also asserted that they had no notice or knowledge about the filing of the appeal by Ram Charitra. The petitioner Nos. 1, 2 and 3 had further indicated that they were neither parties in the said appeal nor any notice was issued to them in the case before passing ex parte order dated 22.5.1975 by which the consolidation officer has directed the name of their father to be expunged from the holding in dispute. These applications were heard and allowed by the consolidation officer vide order dated 22,3.1978 and he restored the case setting aside the said ex parte order dated 22.5.1975. Aggrieved by it, the opposite party No. 2 Ram Charitra had filed a revision. No revision was filed by opposite party No.3. However, he was impleaded as respondent in the revision. This revision was allowed by the Deputy Director of Consolidation vide order dated 1.12.1978 and he set aside the order dated 22.3.1978, The earlier ex parte order dated 22.5.1975 passed by the consolidation officer has been restored. This writ petition is directed against said order passed by the Deputy Director of Consolidation. 2. I have heard learned counsel for the parties at some length and have perused the impugned order very carefully. 3. Learned counsel for the petitioner urged that the Deputy Director of Consolidation acted illegally and without jurisdiction in allowing the revision against order dated 22.3.1978 passed by the consolidation officer by which he had set aside the ex parte order and had restored the case for being decided on merits. 3. Learned counsel for the petitioner urged that the Deputy Director of Consolidation acted illegally and without jurisdiction in allowing the revision against order dated 22.3.1978 passed by the consolidation officer by which he had set aside the ex parte order and had restored the case for being decided on merits. In other words, his contention was that against interlocutor) order no revision was maintainable under Section 48 of the U.P. Consolidation of Holdings Act (for short the act) in view of the amendment incorporated in the section which provide that no revision is maintainable against interlocutory order passed by the subordinate consolidation authorities in any case or proceedings pending before them. 4. So far as this question regarding maintainability of revision against order setting aside ex parte order is concerned, I find no merit in it. The order setting aside ex parte decree or order passed in the case cannot be merely an interlocutory order because if such an order or decree is found to be palpably wrong and erroneous on facts and in law and is accordingly, set aside, then the case or proceedings which were decided by the ex. part order would stand disposed of. It, therefore, cannot be said to be merely an interlocutory order. It has been held by the Division Bench of this court that the order setting aside ex parte decree is not an interlocutory order and amounts to 'case decided' and a revision is maintainable against such order, if it his been passed by the Court in defiance of order 9 Rule 13, Code of Civil Procedure. Thus, in this view of the matter I find that revision against order dated 22.3. 1978 passed by the consolidation officer setting aside ex parte order dated 22.5. 1975 was maintainable under Section 48 of the Act. 5. Learned counsel for the petitioner had next urged that the consolidation officer has set aside the ex parte order dated 22.5.1975 after taking into consideration the fact that after remand of the case notices which were issued to the petitioners were not served on them. He had further held that the petitioner Nos. 1, 2 and 3, who are sons of Bachcha, were not issued any notice at all and, thus, no order could be passed expunging name of their father Bachcha, who was one of the tenure holders in the disputed holding. He had further held that the petitioner Nos. 1, 2 and 3, who are sons of Bachcha, were not issued any notice at all and, thus, no order could be passed expunging name of their father Bachcha, who was one of the tenure holders in the disputed holding. Referring to the findings recorded by the consolidation officer, learned counsel had pointed out that after remand of the case, notices which were issued to the petitioner Nos. 4 to 14 were not personally served on them. A joint notice was issued in C.H. Form No. 6A against Trilok Nath, Tribhuwan Nath, Satya Narain and Shesh Narain. This notice is said to have been served on Trilok Nath. But he has denied to have received any such notice. He has also denied his alleged signatures on it. It is not disputed that this notice was not served on Tribhuwan Nath, Satya Narain and Shesh Narain. Similarly other joint notice was issued in the name of Ram Sunder and Ram Sewak. It was not served on Ram Sewak aid is said to have been served on Ram Sunder, who has asserted that no notice was served on him nor he had put his signatures on it. There is no notice on record so far as Ram Nain, Raja Ram and Ram Chandra sons of Bachcha are concerned nor any notice is said to have been issued to them. Learned counsel contended that none of the petitioners was served with any notice and when they came to know about the said ex parte order, they moved for its setting aside. The consolidation officer had found the facts stated by the petitioners to be correct and thus, he had set aside the order and restored the case. Learned counsel contended that the Deputy Director of Consolidation though found as a matter of fact that the aforesaid notices which were issued were not served at all on some of the petitioners, but he interfered with the order passed by the consolidation officer observing that after remand of the case no notice was required to be sent to them as the parties were directed to appear before the consolidation officer on 14.5.1974, by the Assistant Settlement Officer, Consolidation while allowing the appeal vide order dated 6.5. 1974. 1974. Learned counsel urged that the Deputy Director of Consolidation has committed manifest error in interfering with the order taking the said erroneous view. It was urged by learned counsel that since the petitioners were not served with a notice nor they had any knowledge about the proceedings pending before the consolidation officer in pursuance of the remand order and, as such, the consolidation officer had rightly restored the case. It was, thus, urged that the order passed by the Deputy Director of Consolidation deserves to be quashed and the order passed by the consolidation officer deserves to be maintained so as to provide an opportunity to the petitioners to contest the case on merits. Learned counsel had further contended that by the above ex parte order name of father of petitioners 1, 2 and 3 has been expunged and the name of opposite party No. 3 has been ordered to be recorded as cotenure holder having l/4th share therein and also determining share of Ram Charitra to the extent of half share in disputed holding is palpably wrong and cannot be sustained. 6. In reply learned counsel for the opposite parties urged that since the petitioners were about the proceedings in the case pending before the consolidation officer in pursuance of the remand order, and, as such, they were not entitled to seek restoration of the case. It was urged by learned counsel that against the ex parte order dated 22.5.1975 petitioners had moved applications for its setting aside on 30th October, 1977. This long delay has not been explained by the petitioners so as to give them benefit of Section 5 of the Limitation Act, Learned counsel urged that the consolidation officer had wrongly observed that the notice was hot served on the petitioners. It was pointed out by learned counsel that the petitioners Triloki Nath and Ram Sunder were personally served but in spite of service they had failed to put in appearance, and, as such, said order dated 22.5.1975 could not be set aside. 7. I have considered that arguments of the learned counsel for the parties and I find much substance in what has been stated by the learned counsel for the petitioners. 8. It is not disputed that the name of father of the petitioners 1, 2 and 3 Sri Bachcha was recorded as cotenure holder in the disputed holding. 7. I have considered that arguments of the learned counsel for the parties and I find much substance in what has been stated by the learned counsel for the petitioners. 8. It is not disputed that the name of father of the petitioners 1, 2 and 3 Sri Bachcha was recorded as cotenure holder in the disputed holding. His name has been ordered to be expunged vide order dated 225 1975. Since no notice was issued to the petitioners No. 1, 2 and 3 by the consolidation officer and, as such the order expunging name of Sri Bachcha from the disputed holding. could not be passed. It is also not disputed that the petitioner Nos. 1, 2 and 3 were not arrayed as respondents in the appeal filed by the opposite party No. 2 Ram Charitra. Thus, the petitioners No. 1, 2 and 3 cannot be said to be aware about the order dated 6.5.1974 passed by the Assistant Settlement officer, consolidation remanding the case to the consolidation officer for deciding it fresh on merits. The petitioners Nos. 1,2 and 3 therefore, should have been issued a notice by the consolidation officer before the expunction of the name of their deceased father from the disputed holding. 9. Learned Deputy Director of Consolidation has observed that since in the remand order 14.5.1975 was fixed for appearance by the parties before the consolidation officer, and, as such no fresh notice was required to be issued. This view is apparently erroneous because no decision could be rendered by the consolidation officer without affording opportunity of hearing to the concerned parties. The consolidation officer had not decided the case on 14.5.1975 as apparently the parties had not put in appearance before him. He had, therefore rightly directed notice to be issued to them for appearance in the case. He had however, erred in rendering order dated 22.5.1975 merely by recording statement of Ram Charitra. This order was passed ex parte against the petitioners because besides Ram Charitra and Mata Pher no one else had put in appearance before him on that date. The opposite party No.2 Mata Pher was not a recorded tenure holder in the disputed holding. He has been given a share by said ex parte order dated 22.5.1975. Thus, the consolidation officer should have taken care to verify whether notice has been personally served on all the parties or not. The opposite party No.2 Mata Pher was not a recorded tenure holder in the disputed holding. He has been given a share by said ex parte order dated 22.5.1975. Thus, the consolidation officer should have taken care to verify whether notice has been personally served on all the parties or not. He should have also taken care to issue notice to the petitioner Nos. 1, 2 and 3, who are sons of Bachcha. No order could be passed expunging name of the recorded cotenure holder Sri Bachcha without giving notice to his heirs and Legal representatives. The consolidation officer, thus, acted illegally in ordering expunction of the name of Bachcha and in determining the shares of parties who were not even served with a notice. 10. It is no doubt correct to say that an ex parte order cannot be set aside unless it is shown that (1) summons were not duly served, and (2) the opposite parties were prevented from appearing on sufficient cause. In the present case, as already observed above, the Consolidation Officer has held that notices were not served on all the respondents. Sri Triloki Nath, Harihar and Ram Sunder had denied to have received any notice and they had disputed their alleged signatures on the notice issued to them. The Consolidation Officer had after taking into consideration all facts and circumstances of t set aside the order dated 22.5.1975 and had restored the case for decided on merits. 11. Learned Deputy Director of Consolidation had, however, in with the order on the ground that some of the Petitioners were served with notice and, thus, the petitioners could appear and contest the case. They have failed to contest the case in spite of knowledge of the proceedings and, as such they cannot seek setting aside of order dated 22.5.1975, which according to the learned Deputy Director of Consolidation was rightly passed against them. I find this view to be quite erroneous because when after remand of lease notices were issued to the petitioners, then the consolidation officer should have verified as to whether all of them have been served or not. The petitioners in the application for restoration have averred that they were not served with any notice not they had knowledge or information about the pending proceedings before the consolidation officer in pursuance of said order. The petitioners in the application for restoration have averred that they were not served with any notice not they had knowledge or information about the pending proceedings before the consolidation officer in pursuance of said order. They had, thus, sufficiently explained as to why they had not put in appearance when the case was heard and decided ex parte by the consolidation officer on 22.5.1975. 12. Learned counsel for the opposite parties had, however, vehemently urged that since after remand of the case notice was served personally on Ram Sunder, Harihar and Triloki Nath and in spite of notice they had failed to put in appearance in the case and, as such, the order dated 22.5.1975 could not be set aside by the consolidation officer so far as said petitioners are concerned. It was further urged by learned counsel that since the other petitioner belong to the family of aforesaid persons, and, as such, it can very well be assumed that they were aware about the date fixed in said case and having not put in appearance to contest the case, the said order dated 22.5.1975 could not be set aside and the case could not be restored for hearing afresh on merits. I do not find any merit in this contention. 13. Triloki Nath, Harihar and Ram Sunder have denied to have received any notice and they have also denied their signatures thereon. Even if it be taken to be correct, though not conceding, that these persons were served with notice, but then the fact remains that the other petitioners were not served with a notice at all, they, therefore, cannot be said to have any notice ledge about the said proceedings nor could it be assumed that they came to know about the date fixed in the case merely because they happened to be members of the family of the aforesaid persons on whom notice is said to have been served. A notice served on one of the members of the family cannot be taken to be sufficient service on other members of the family. Triloki Nath, Harihar and Ram Sunder are not said to have accepted notice on behalf of their brothers to whom notices were issued. A notice served on one of the members of the family cannot be taken to be sufficient service on other members of the family. Triloki Nath, Harihar and Ram Sunder are not said to have accepted notice on behalf of their brothers to whom notices were issued. They also not held any power of attorney on behalf of their brothers and, as such, the alleged service of notice of Triloki Nath, Harihar, Ram Sunder cannot be taken to be sufficient service on all the petitioners. 14. Learned counsel for the opposite parties had urged that the consolidation officer should not have set aside the entire order dated 22.5.1975 and should have maintained it so far as Triloki Nath, Harihar and Ram Sunder are concerned, who were served with a notice. These persons have averred that they were not at all served with a notice and denied their alleged signatures on the notice. There appears no good ground to disbelieve their averment to that effect. Apart from it, the ex parte order dated 22.5.1975 deserved to be set aside as a whole as admittedly notice on all the petitioners were not served and even no notice was issued to the petitioners No. 1, 2 and 3, who are sons of Bachcha and so the impugned order deserved to be recalled as a whole because it could not be set aside and maintained in parts. 15. In the Full Bench decision Bhura Mal v. Har Kishan Das (ILR XXVI Al 303) it was held that where none of the defendants appeared, on the hearing and decree was passed against them ex parte and the decree was one and indivisible, it must be set aside in its entirety and not simply against those defendants alone who had moved application for setting aside the decree, in another decision Dookhee Khan v. Rajeshuree Ranee (15 W.R.C.R. 371), Norman C. J. observed : In my opinion the court must be assumed to have (he power to set aside the whole decree, if the decree from its nature is one and indivisible, or if in order to give the defendants against whom an ex parte decree has to be pronounced the relief to which they are entitled, it must be set aside as a whole. 16. In vet another decision Seth Loon Karan v. The Provincial Cooperative Industrial Federation Ltd. Lucknow and others. 16. In vet another decision Seth Loon Karan v. The Provincial Cooperative Industrial Federation Ltd. Lucknow and others. (1958 All LJ 367) the Division Bench observed : Ordinarily an ex parte decree can, and should, be set aside only against the defendant applying. But if a decree is indivisible or where the liabilities of the defendants as set out in the plaint are not separable, the decree in view of the proviso to order IX Rule 13, CPC may be set aside in toto and not in part. 17. Thus, in view of the above I am of the opinion that where an application for setting aside a decree or order which was passed jointly against several defendants and it is joint & indivisible, then it would deserve to be set aside as a whole. The Court in such a case cannot be said to have committed irregularity in setting aside the entire decree or order against all the defendants although some of them might not have applied for its setting aside or all of them could not show sufficient cause for their absence at the hearing in spite of service of notice on them. 18. In the present case I find that the aforesaid ex parte order dated 22.5.1975 passed by the Consolidation Officer deserved to be set aside as a whole and could not be maintained so far as Triloki Nath, Harihar and Ram Sunder are concerned, who are said to have been served with notice. Since in the present case the question regarding the alleged claim of title set but by opposite party No. 3 and regarding share of parties in the disputed holding was involved, it should have been decided in presence of all the parties by serving notice on them and giving them full opportunity of hearing which has not been done in this case, and, as such the ex parte order dated 22.5.1975 deserved to be set aside as a whole and it cannot be maintained so far as said persons are concerned on whom notice is said to have been served. They have denied service of notice on them and apart from it sufficient cause has also been shown by them for nonappearance in the case which was accepted by the consolidation officer while setting aside the order and restoring the case for deciding it on merits. 19. They have denied service of notice on them and apart from it sufficient cause has also been shown by them for nonappearance in the case which was accepted by the consolidation officer while setting aside the order and restoring the case for deciding it on merits. 19. It is well settled that lenient view should be taken in the matters relating to restoration of cases and condonation of delay. An application for restoration and condonation of delay would deserve to be rejected only if there are grave unexplained laches coupled with lack of bona fides on the part of the applicant in moving application seeking condonation of delay. A court, should always be keen for doing substantial justice between the parties by deciding the case on merits after hearing the parties so that injustice be not caused to a party who is not guilty of deliberate laches and lack of bona fides on his part in prosecuting the case. 20. In the present case I find that the petitioners have sufficiently explained the delay in filing the restoration application. The consolidation officer had rightly allowed the applications for restoration moved by the petitioners. 21. It has been repeatedly held by the Hon'ble Supreme Court that while considering application for condonation of delay, a lenient view deserves to be taken. The Hon'ble Supreme Court in a recent decision in re: Collector, Land Acquisition, Anantnag and another v. Mst. Katiji and others (AIR 1987 Supreme Court 1353) (July Part) has observed: The Legislature has conferred the power to condone delay by enacting Section 5, of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice that being the lifepurpose for the existence of the institution of Courts. It is common knowledge that this Court has been taking a justifiably liberal approach in matters instituted in this Court. 22. It is common knowledge that this Court has been taking a justifiably liberal approach in matters instituted in this Court. 22. This Court has also in several decision laid stress upon taking liberal view in the matters condoning delay so as to advance justice between the parties and not to shut out hearing on merits (See Writ Petition No. 5393 of 1981, Ziledar Singh v. Prescribed Authority (Ceiling) Kaiserganj, district Bahraich and others decided on 24.8.1987 (1988 (6) LCD 51). 23. As already observed above, in the present case the petitioners had sufficiently explained the delay in moving application for setting aside ex parte order dated 22.5.1975 and there is no lack of bona fide on their part in prosecuting the case. The consolidation officer, by the aforesaid ex parte order dated 22.5.1975 had ordered expunction of the name of Bachcha without serving notice on his heirs and legal representatives and had further determined caring to see that notice was not the share of the parties without caring to see that notice was not served on them. The said order was, therefore, rightly set aside by the consolidation officer vide order dated 22.3.1978. The learned Deputy Director of Consolidation has committed manifest error in allowing the revision and maintaining the order dated 22.5.1975, which was per se wrong and illegal. Thus, I find, that the impugned order dated 4.12.1978 passed by the Deputy Director of Consolidation cannot be sustained and deserves to be quashed. 24. In the result, the writ petition is allowed and the order dated'4.12. 1978 passed by the Deputy Director of Consolidation is quashed and the order dated 23 3.1978 passed by the consolidation officer is restored and maintained and he is directed to decide the case after giving notice to all the parties. 25. No order as to costs.