Nathoo Lal v. State of Uttar Pradesh — 1990 DIGILAW 461 (ALL)

JUDGMENT Nathoo Lal, M. - This revision is directed against the order dated 30.4.87 passed by the Addl. Commissioner, Bareilly Division, Bareilly in revision No. 169/32 of 1987 of district Pilibhit Nathoo Lal v. U.P. State and another arising out of order dated 5.3.1986 passed by the Sub-Divisional Officer Bisalpur district Pilibhit suit No. 31 of 85-86 under Section 229-B of the U.P. Zamindari Abolition and Land Reforms Act, to be called the "Act" hereinafter. 2. The facts of the case in brief are that a suit under Section 229-B of the Act was brought before the Sub-Divisional Officer Bisalpur District Pilibhit by Nathoo Lal son of Baldeo Prasad resident of village Narainpur, Pargana and Tehsil Bisalpur District Pilibhit against the Gaon Sabha Narainpur and the State of U.P. seeking declaration of Sirdari rights over the land comprising of plot Nos. 101, 135, 237, 252, 268, 370, 393, 394 and 395 with a total of nine plots having the total area of 3.75 acres situated in village Narainpur described above. The suit proceeded ex-parte against the Gaon Sabha and the State and was decreed under the judgment and decree dated 31.5.69 passed by the Assistant Collector First Class Sri C.l. Kureel, Pilibhit. A restoration application against the judgment and decree was filed under Order 9, Rule 13 of the C.P.C. by the D.G.C. (R.) Pilibhit on behalf of the State of U.P. on 2.1.86 with the allegations that the judgment and order dated 31.5.69 has been passed without any service of summon or notice on the State of U.P. which is proved from the orders dated 31.4.69, and 9.5.69 passed by the Sub-Divisional Officer, Bisalpur considering the service on the State as not sufficient. This application was also accompanied by an application for the condonation of delay under the provisions of Indian Limitation Act. The restoration application was strongly opposed by Revisionist Nathoo Lal who filed objections with the contentions that he had been in the active service of the Indian Army and has retired now and his two sons Kamta Prasad and Naresh Prasad are still serving the nation, one of whom is in active service of Indian Army and the other in the P.A.C. and the objector comes from the backward class and did not have land inherited from his fore-fathers. The objector also alleged that under the standing orders of the Government the objector was allotted Gaon Sabha land to maintain his livelihood and since the Pradhan of the village Sri Bankey Lal was ejected from the land on the suit brought by him which was suit No. 3 of 1969 under Section 209 of the Act, the said Pradhan is at the enemical terms with the objector and has conspired the litigation against him and on his own initiation the cancellation proceedings were moved against his allotment which were decided in favour of the objector by the Collector and therefore to put the objector unnecessary harassment the present restoration application has been filed by the D.G.C. (R.) on behalf of the State due to active initiative of the Pradhan. The restoration application was allowed under the orders of the S.D.O. Bisalpur passed on 5.3.86 revision was preferred against his order before the Commissioner Bareilly Division, Bareilly which has also been dismissed under the orders dated 30.4.87 passed by the Addl. Commissioner, Bareilly Division, Bareilly making way to the litigation to come to this court in the form of present revision. 3. I have heard the learned counsels for the parties and have perused the records. 4. The learned counsel for the revisionist, during the course of his arguments has laid great emphasis on the point that the restoration was sought under Order 9, Rule 13 on the grounds of no service on the State of U.P. but neither the learned trial court nor the learned Addl. Commissioner have given any findings and have made any observations with regard to the legal requirement of these legal provisions to justify, the order of restoration. The learned counsel for the revisionist has contended with force that it is proved beyond all shadow of doubts from the record itself that summons were served both on the Gaon Sabha and on the State of U.P. but in spite of service none of the defendants liked to contest the suit and the suit proceeded ex-parte against both. The learned counsel for the revisionist has contended with force that it is proved beyond all shadow of doubts from the record itself that summons were served both on the Gaon Sabha and on the State of U.P. but in spite of service none of the defendants liked to contest the suit and the suit proceeded ex-parte against both. The learned counsel for the revisionist has further argued that not only the service of summon on both the defendants is sufficient but the other ingredient of Order 9, Rule 13 of the C.P.C. is also proved to have been fulfilled because both the Gaon Sabha and the State have got full knowledge of the trial of the suit as is evident from paper No. 13/2 in the trial court file which is a report dated 8.2.75 and paper No. 15/1 on the basis of the report dated 4.1.75 and the statement of revisionist dated 27.2.74. The learned counsel for the Revisionist has also pointed out that the most important niece of evidence to prove that State did have full knowledge of the trial of the suit and of the decree passed is paper 19 which is the report of the Sub-Divisional Officer Bisalpur submitted to the Collector Pilibhit dated 2.5.75. The learned counsel for the advancing his arguments further has made contentions that it is the satisfaction of the court that the explanation submitted about the service and about not filing the written statement in time which is most material for envoking the powers if the court to proceed under the provisions of Order 9, Rule 13 of C.P.C. The learned counsel for the revisionist pointing out the two important ingredients of Order 9, Rule 13 which are mandatory for attracting the powers of the court to be exercised in restoration matters which are that either it is proved that the satisfaction of the court that the defendants was not served with the summon and did not have knowledge about the trial of the suit and the other is that the service is proved but the defendants furnishes explanation for the satisfactions of the court showing sufficient cause which prevented the defendant from filing the written statement earlier to oppose the suit. The contentions of the learned counsel for the revisionist are that both the learned courts below have made no discussion nor have considered any of the ingredients nor any evidence in support of them to justify the order of restoration. The further contentions of the learned counsel for the revisionist are that the learned trial court has recorded no findings on Order 9, Rule 13 of C.P.C. and has allowed the restoration simply by saying that it is necessary in the interest of justice while he has forgotten that great injustice is to be done to the other party by allowing restoration without sufficient cause after a long long period of seventeen years. Similarly the learned counsel has pointed out that the learned court below has repeated the same mistake and has not considered the matter looking it with a legal view under Order 9, Ruler 13 of the C.P.C. but has upheld the order of the trial court by saying simply that it has been passed in the interest of justice and a liberal view is to be taken in such matters. The learned counsel has urged that there is no question of taking a liberal view or passing an order in the interest of justice unless it is considered that no great injustice done to the other party and also that there are sufficient grounds under Order 9, Rule 13 to warrant the restoration order and the observations about the report of D.L.R.C. of the Collectorate is further irrelevant because the court is not expected to seek report from any official of the Collectorate. The learned counsel for the revisionist has contended again that the second proviso to Order 9, Rule 13 of the C.P.C. clearly provides that even if any small lacuna and irregularity is found to have been in service of summons on the defendants that cannot be a ground for setting aside the ex-parte decree. The learned counsel has cited 1980 A.W.C. (H.C.) page 101 in support of his contentions which according to him is a district ruling on the point of second proviso to Order 9, Rule 13. The learned counsel for the revisionist has again cited 1970 Alld. The learned counsel has cited 1980 A.W.C. (H.C.) page 101 in support of his contentions which according to him is a district ruling on the point of second proviso to Order 9, Rule 13. The learned counsel for the revisionist has again cited 1970 Alld. page 525 and has argued that if tie court omits from consideration the material on record bearing a great weight on merits of the case to be decided, the order is open for interference in revision. Lastly, the learned counsel for the revisionist has argued that none of the learned courts below have even touched the point of limitation which is thirty days from the date of service or from the date of knowledge and if the restoration is sought beyond the period of limitation the court must give reasons and discuss the sufficiency of cause justifying the order of the restoration but the learned court below have totally failed to appreciate these legal provisions and have considered the term in the interest of justice and liberal view being the only ground in setting aside the ex-parte decree after 17 years. 5. The learned D.G.C. (R.), on the other hand, during the course of his arguments has agreed that so far as the service on the Gaon Sabha is concerned it appears to be sufficient on the face of record but his contentions are that there is no evidence to prove the service on the State of U.P. which may be considered to be sufficient nor the statement on oath of the process server was recorded. The learned D.G.C. (R.) has pointed out that order-sheet dated 21.4.74 shows that report from D.L.R.C. was to be obtained and the order sheet shows that the court was continuously not satisfied with the service on the State. The learned D.G.C. (R.) has also contended that the case was filed in the court of the S.D.O. Bisalpur but in the meanwhile it was transferred for disposal to the court of Sri C.I. Kureel the Asstt. Collector, First Class Pilibhit and no notice to the State after its transfer was given. The learned D.G.C. (R.) has raised doubts that the summon purported to be served on the State is not a genuine paper and appears to have been forged. 6. I have considered the arguments advanced by the learned counsels for the parties. Collector, First Class Pilibhit and no notice to the State after its transfer was given. The learned D.G.C. (R.) has raised doubts that the summon purported to be served on the State is not a genuine paper and appears to have been forged. 6. I have considered the arguments advanced by the learned counsels for the parties. So far as the legal questions and points raised by the learned counsel for the revisionist during the course of his arguments are concerned, I do not find any reason to disagree with his contentions and I totally endorse the contentions made by the learned counsel for the revisionist because in the facts and circumstances of the case it is apparently clear that both the learned courts below totally ignored the legal provisions of Order 9, Rule 13, C.P.C. while considering the restoration application of the State nor there is any discussion and findings recorded either on the point of service on the State of U.P. or on the point of sufficient cause which prevented the State from not contesting the suit and also from not seeking the restoration for a long period of seventeen years. The doubts raised by the learned D.G.C. (R.) about the summon which has allegedly been served on the State are absolutely baseless having no legs to stand because no such objection has been raised at any stage on behalf of the State that the summon allegedly served on the State of U.P. is a forged document. From the perusal of the summons issued to the Gaon Sabha and to the State of U.P., it is very much explicit that the summons was served personally on the Pradhan of the Gaon Sabha Sri Ram Lal on 5.4.69 which has also been agreed by the learned D.G.C. (R.) in his arguments. From the perusal of the summons issued to the Gaon Sabha and to the State of U.P., it is very much explicit that the summons was served personally on the Pradhan of the Gaon Sabha Sri Ram Lal on 5.4.69 which has also been agreed by the learned D.G.C. (R.) in his arguments. The other summon sent to the State of U.P. for service on the Collector, Pilibhit has also been served personally on 28.3.69 on the D.L.R.C. (District Land Reforms Clerk) of the Collectorate as has been alleged by the revisionist because on the back of the summon the paper contains the signatures in token of its receipt and it is definitely clear that in those times the summons sent to the State of U.P. were to be served on the Collector concerned and there practise was that they were received by D.L.R.C. of the Collectorate on behalf of the Collector. There is no denial of this fact nor the D.L.R.C. or the learned D.G.C. (R.) Pilibhit have filed any affidavit or given their statements to say on oath that the summon was not personally served on the official concerned. Both the papers one the summon to the Gaon Sabha and the other the summon to the State of U.P. are written in the same hand-writing with the same ink and pen and bears the signatures of the same person of the court and there is no ground for doubting the genuineness of these papers which are serially numbered the trial court file and also entered in the list of papers on the file cover. Thus the service on the State is held to have been sufficient and the plea that no summon was served on the State cannot be accepted. Moreover, the contentions of the learned counsel for the revisionist that the State had full knowledge about the trial of the suit and about the decree passed are also totally proved from the evidence on record. Moreover, the contentions of the learned counsel for the revisionist that the State had full knowledge about the trial of the suit and about the decree passed are also totally proved from the evidence on record. The paper No. 19/1 is on file which is the report under the signatures of Sri Bhanu Pratap Shukla the Sub-Divisional Officer, Bisalpur dated 2.5.75 submitted to the Collector Pilibhit wherein he has informed the Collector that the suit of Nathoo Lal son of Baldeo Prasad resident of village Narainpur under Section 229-B of the Act, which was case No. 66 of 1969 seeking tenancy rights on the basis of lease executed in his favour, was decreed and Nathoo Lal was declared Sirdari who had been serving in the Indian Army. The learned S.D.O. also recommended to the Collector that the matter could not be reopened and the application of then Hira Lal Pradhan was to be filed as no action was needed. This report was seen by the Collector on 4.5.75 which amounts to the approval given by the Collector on the proposal of the S.D.O. for not reopening the matter. The Collector is the district representative of the State Government for all legal purposes and once it was decided as early as on 4.5.75 that the matter shall not be reopened, there appears no justification in filing of the restoration application by the D.G.C. (R.) Pilibhit on behalf of the State saying that the restoration was being filed with the permission of the Collector, Pilibhit. There is nothing on record to show that any permission of the Collector was sought by the learned D.G.C. (R.) before moving the restoration application nor any such permission has been filed and if for the sake of arguments it may be admitted that permission was accorded, it cannot be believed that it was given in face of the full facts to be presented before him including the fact that earlier in 1975 the Collector had ordered for not reopening the matter as discussed above. Since no permission has been filed nor there is any affidavit on or any statement on oath to prove that the required permission was actually granted by the Collector, the restoration application moved by the learned D.G.C. (R.) Pilibhit cannot be held to have been moved by an authorised person having the power to move the restoration on behalf of the State and this restoration was not maintainable and ought to have been dismissed out rightly. I absolutely agree with the contentions of the learned counsel for the revisionist that no irregularity or lacuna in the service of summon on the State is proved even if it could have been proved, then under the Second proviso to Order 9, Rule 13 of the C.P.C. no court shall set aside a decree passed ex-parte merely on the ground that there has been an irregularity in the service of summons if it is satisfied that the defendants had notice of the date of hearing and had sufficient time to appear and answer the plaintiff's claim. In the present case the notice was sufficiently served and even this proviso is not attracted at all. The observations of both the learned courts below that the restoration has been allowed in the interest of justice, is actually the misuse of the discretionary power in the facts and circumstances of the case because a great injustice has been caused to a person without any fault on his part who has been drawn unnecessarily to a great harassment and loss of money due to litigations particularly when the Gaon Sabha had allotted this land to him and on the basis of allotment he sought a decree in his favour under Section 229-B of the Act. Thus I come to the conclusion that the impugned order passed by the leaned courts below and also order passed by the learned S.D.O. Bisalpur for setting aside the ex-parte decree suffer from material irregularities and also are illegal or the face of it having no justification for their existence. 7. In view of the observations made above, the revision is allowed, the order of the Additional Commissioner, Bareilly Division, Bareilly dated 30.4.87 and the order dated 5.3.1986 of the Sub-Divisional Officer Bisalpur District Pilibhit are set aside and the restoration application moved on behalf of the State of U.P. by the D.G.C. (R.) Pilibhit is dismissed.