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1988 DIGILAW 667 (ALL)

Shamsher Singh v. Gaon Sabha

1988-07-29

BRIJESH KUMAR

body1988
JUDGMENT Brijesh Kumar, Member - This revision petition arises out of an order dated 3.6.1985 passed by Sri R.N. Verma, Additional Commissioner. Varanasi Division, Varanasi in revision No. 278 of 1984, Ballia Shamsher Singh v. Gaon Sabha. 2. Briefly stated, the facts of the case are that Shamsher Singh had brought a suit u/s 229-B of the U.P. Zamindari Abolition and Land Reforms Act for the declaration of his rights over plot numbers 732, 735 and 736 situate village Burhau, Pergana Kopachit Garbi, district Ballia. Gaon Sabha and State did not put their appearance to contest the suit. After framing issues, the learned trial court decreed the suit on 8.8.1974. On 13.2.1984, Gaon Sabha moved an application before the trial court for restoration of the case with the allegation that so summons were served on it. The learned trial court allowed the restoration application and set aside the order dated 8.8.1974 by its order dated 26.5.1984. Against this order Shamsher Singh preferred a revision before the Divisional Commissioner, Varanasi. The learned Additional Commissioner dismissed the revision on 3.6.1985 holding that the summons were not served properly on the pradhan and that the LMC had duly authorised the pradhan to conduct the suit. The present revision petitioner has been filed against this order. 3. The grounds of revision are that the court below dismissed the revision without recording and finding on the basic point as to whether the ground for restoration was sufficient or not, that the State of U.P. had filed the written statement through the Collector and the Gaon Sabha had also filed the written statement through Kamla Ram etc. and the DGC (R) has contested the suit on behalf of the Gaon Sabha, that the summons were properly served upon the opposite parties and that the suit was not decreed ex-parted, that the restoration application had not been duly signed and filed by the person duly authorised, that at the time of service of summon, the pradhan was ill and on his behalf his Karbardaz received the summon and for that reasons only the written statement was signed by the members of the LMC and Up-Pradhan. 4. I have heard the learned counsel for the parties and have also perused the record. 4. I have heard the learned counsel for the parties and have also perused the record. The first argument advanced by the learned counsel for the revisionist is that the suit was not decreed ex-parte because the Gaon Sabha had filed written statement on 30.6.74 and the State had also file written statement on 7.6.1974. His second argument is that the State and the Gaon Sabha neither adduced any evidence nor they look any action from 8.8.1974 i.e. the date of the order passed by the trial court, to 7.12.1981 and since no steps were taken by the Gaon Sabha and the State for seven long years, the decree passed by the trial Court became final and the period of limitation had also expired on 8.12.1981. The third argument advanced by the learned counsel for the revisionist is that the date of knowledge given by the pradhan is false because the LMC passed a resolution on 5.12.1981 to the effect that the decree be got set aside. The fourth argument advanced by the learned counsel for the revisionist is that though the service of summon was proper, even and irregular service of summon is not a ground for recalling an earlier order and once the penal lawyer puts his appearance in the Court, the service cannot be said to be defective Another argument advanced by the learned counsel for the revisionist is that the pradhan Ram Sunder Singh himself had appeared in the court on 1.3.1974. Emphasising on the sufficiency of the service of summons, the learned counsel had maintained that under Order V, Rule 15 CPC, the service of summons may be made on any adult member of the family and in the present case, the brother of the pradhan had received the summon. He placed reliance on 1986 R.D. 58. Another argument advanced by the learned counsel is that the knowledge to the pradhan will not govern the entire litigation proceedings. In support of his argument, he has placed reliance on 1982 R.D. 136. It has also been argued that when the State had contested the suit, existence of Gaon Sabha is presumed. He has cited 1986 AWC 40 (Rev.) in support of his argument. As regards the merits of the case, the learned counsel has contended that the court should have confined themselves to the application for recalling the decree. It has also been argued that when the State had contested the suit, existence of Gaon Sabha is presumed. He has cited 1986 AWC 40 (Rev.) in support of his argument. As regards the merits of the case, the learned counsel has contended that the court should have confined themselves to the application for recalling the decree. They were not supposed to touch the merits of the case. In support of his argument, he has placed reliance on 1973 RD 304. 5. The learned counsel for the respondents has maintained that the summons were not properly served on the pradhan. The first question for consideration is whether the summon was properly served on the pradhan of the Gaon Sabha. It appears from the judgment of the trial court dated 26.5.1985 that summon was served on the brother of the pradhan. 6. Para 74 of the Revenue Court Manual provides that if the person on whom the summon is addressed is absent and the process server after using all due diligence cannot find him or his agent or any adult member of his family, he shall affix a copy of the summon on outer door or other conspicuous part of the house. Order V Rule 15 CPC provides that where in any suit the defendant is absent from his residence at the time when the service of the summon is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept the service of summon on his behalf, the service of the summon may be made on any adult member of his family, whether male or female who is reading with him. 7. In the present case, the summon was served on 17.12.73 on Lal Bachcha Singh, brother of the pradhan. It appears from the order-sheet dated 1.3.1974 that Ram Sunder Singh pradhan was present in the court on 1.3.1974 and that he had signed the order-sheet also. If he had knowledge of the proceedings why did he attend the court and signed the order-sheet. A written statement was also filed on behalf of the Gaon Sabha on 4.6.1974. Surprisingly, it does not bear the signatures of the pradhan though other members of the Gaon Sabha had signed the written statement. If he had knowledge of the proceedings why did he attend the court and signed the order-sheet. A written statement was also filed on behalf of the Gaon Sabha on 4.6.1974. Surprisingly, it does not bear the signatures of the pradhan though other members of the Gaon Sabha had signed the written statement. The service of summons on the brother of the prahdan and the pradhan's subsequent appearance in the court followed by filing of written statement on behalf of the Gaon Sabha, are sufficient enough to prove that summon was properly served and that the pradhan had full knowledge of the proceedings going on before the trial court. Besides this, a written statement was also filed on behalf of the State and the DGC contested the case. Witnesses were also examined and cross-examination and issues were framed. It, therefore, cannot be said that the suit was decreed ex-parte. The trial court has made it clear in its judgment dated 8.8.1974 that it had heard counsel for both the parties. The trial court was, therefore, not justified in setting aside the order dated 8.8.1974. The learned Additional Commissioner too did not try to see whether the alleged service of summon on the pradhan was sufficient or not. No effort was made to see why steps for restoration of the suit was taken after more than seven years. 8. In view of the facts and circumstances of the case discussed above, I am inclined to allow the revision petition and set aside the orders passed by the courts below. 9. In the result, the revision petition is allowed and the orders dated 3.6.1988 and 26.5.1984 passed by the Additional Commissioner and the trial court respectively are hereby set aside.