JUDGMENT A.U. Khan, Member Judicial - The facts are on 23-5-1970 Kewal Singh institutes a declaratory law suit under section 229-B, Z.A. & L.R. Act in Sub-Divisional Officer's Nighasan, Kheri. The pleading set forth a claim and contention that he had acquired the land; Khasra No. 8 areas 63 acres through a lease deed dated 24-5-1951 from Manager, State of Kheragarh. Since then his possession is continuing apace. In the settlement of 1373 Fasli instead of his, the name of Gaon Sabha, is entered in. In consequence thereof changed No. 81 kha, 285 kha and 215 kha. The relief for a declaration as sirdar tenant in possession is prayed for. 2. Defendants Gaon Sabha and State are presumed to be served. But no written statements are to raise a contest. On 1-7-1970 Additional Sub-Divisional Officer Shri Mohd. Ibrahim enters a decree. 3. On 12-10-1970 Shri Yoghesh Chandra, Collector, for State of U.P. and Shri R.S. Mathur, D.G.C. for Gaon Sabha move an application under Order IX, Rule 13, C.P.C. for suit's restoration. The grounds set for are (1) summon of State is neither issued nor served (2) a summon pretending personally serve D.G.C. has no concern with suit in hand (3) no summon is served on Gaon Sabha (4) There is no name of village, pargana and Tehsil in pleading to pin down the situation of the land (5) until 5-10-1970 they were not in the least aware of the decree (6) The ex parte is infected and causes a loss to public land admeasuring 63 acres. 4. On 30-7-1971 Kewal singh files his Objection in Opposition stoutly denying all contentions. The case set forth is that knowledge of decree was surely to defendants and their agents ; the application is time barred. The defendants quite knew where land is situate. 5. In support of warring contentions evidence is adduced. On 9-11-1972 Additional Sub-Divisional Officer Shri Asad Ullah Khan enters an order of suit's retoration; the decree dated 4-7-1970 is set aside. 6. Kewal Singh lodges a revision in Commissioner's. On 17-4-1973 Additional Commissioner Shri G.S. Seth submits a reference to rescind the order and to remand as affidavit of Bal Mukund is not duly verified. On 14-10-1974 Hon'ble Member Sri A.K. Sharma readily accepts recommendation; he set aside order of trial court. The proceeding is remanded to trial court for decision afresh on merits. 7. On 14-10-1974 Hon'ble Member Sri A.K. Sharma readily accepts recommendation; he set aside order of trial court. The proceeding is remanded to trial court for decision afresh on merits. 7. The file came down and was assigned to Additional Sub-Divisional Officer Shri R.P. Shukla; the trial judge. On 30-6-1979 he enters an order rejecting suit's restoration. State and Gaon Sabha lodge a revision. On 30-7-1981 Additional Commissioner Shri I.S. Mathur enters an order of dismissal. Much aggrieved by the verdict, the revision, the revision is carried by State and Gaon Sabha. 8. Having heard pro and con, the matter demands careful consideration. 9. In law suit defendant's are Gaon Sabha D/1 and State of U.P. through Collector D/2. I will examine whether each defendant is separately and adequately served. 1977 A.W.C 138 (R) On Gaon Sabha no service is effectual unless the summon is sufficiently served on Pradhan. His liability is to put up the same, along with a copy of plaint, before L.M.C so that a decision by resolution is taken. If Pradhan receives a summon but fails to put up before LMC, service will not be effectual ; 1982 A.W.C 6 (R) and 1981 A.W.C 63 (R). If Pradhan refuses to accept a summon, service be affected through Panchayat Raj Officer : Ram Lal v. State of U.P. 1977 A.W.C. 149 (Rev) : 1978 R.J. 1 (BR) : 1978 ALJ 4 (NOC 9) In the instant case, Kewal Singh leads no evidence to show that service on Gaon Sabha was in all manner complete. The finding is that Gaon Sabha was not served at all. 10. State of U.P. through Collector D/2. Collector represents state of U.P. in a district and exercises a delegated power. This cannot be re-delegated to any other officer in district administration. In this view of things, Collector is to be personally served. Unless otherwise provisioned, summon be delivered to suits clerk who is to put it up before, say an additional Collector for acknowledgement and return of counterfoil to court issuing it. And from the rule have stemmed myriad of cases which lay down that this requirement is fundamental 1982 RD 353 : 1982 RD 386 1978 RD 111 : 1971 RD 121 : 1982 AWC 6 (Rev) : 1986 R.D 86 : 1980 RJ 23 : 1980 RD 236. In the instant case, no summon is personally served on Collector. And from the rule have stemmed myriad of cases which lay down that this requirement is fundamental 1982 RD 353 : 1982 RD 386 1978 RD 111 : 1971 RD 121 : 1982 AWC 6 (Rev) : 1986 R.D 86 : 1980 RJ 23 : 1980 RD 236. In the instant case, no summon is personally served on Collector. Counsel for Kewal Singh contends that on 5-5-1970 summon is personally served on DGC (Revenue). Is the service in manner and effectual? The summon is issued from ASDO's while the suit wad doing apace in Sub-Divisional Officer's Also the date for appearance is 18-5-1970 when no such date was posted. A devious design? A misleading ploy? A service of process on DGC is no knowledge of suit to Collector. Counsel calls to attention Section 127-B(3), Z.A. & L.R. Act. It say; "A Penal Lawyer in any court shall be the agent of the Gaon Sabha of the area for which he is appointed for purposes of receiving the processes against such Gaon Sabha issued by such court." I am of opinion that DGC is to play his enabling role integrated in the larger, deeper and truer interest of Gaon Sabha. He and Pradhan are to receive processes but that is not for their personal consumption. This is overly unwritten but is ineluctable conclusion of Section 127-B(3) of the Act No. Code or cannon over graps all it weeks to reach. Imminent in law are principles to discern for doing more is not effectual service on State of Gaon Sabha. More, the summon is a forged document as its utter newness, relation with A.S.D.O's and contrived signature on it bear this out. The service itself was not deemed effectual. The next attempt straightway is to serve through a publication in a daily newspaper, "Deepak". The date specified therein is 11-6-1970. The publication is made on 10-6-1970. Only a day's notice. Is this an affording of sufficient time ? Whether substituted service under Order V, Rule 20, C.P.C. is apt? (l) Where the court is satisfied that there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the court. (1-A) Where the court acting under sub rule (1) orders service by an advertisement in newspaper, the newspaper shall be a daily newspaper circulating in the locality." What reasons are to believe that Collector and Pradhan were keeping out of the way for the purpose of avoiding service ? Were any other reasons that summons cannot be served in the ordinary way ? I am of opinion that summons on Collector should never be attempted to be served through a substituted service under Order 5, Rule 20 (1-A), C.P.C. He should always be served in the ordinary way. Kewal Singh is sharp enough to mislead the court to believe that service si sufficient on two defendants. Varily, it was not. And not because common of Gaon Sabha is not received back, no attempt is to serve by registered post or in terms of Order 5, Rule 17, C.P.C. it is always fair to move stop by stop for effecting service to reach the end of line at Rule 29, substituted service. There is seldon information to defendants by publication in a newspaper, AIR 1955 (NOC) 181 Volume 42. An order granting suit's restoration is eminently just and proper. 11. Still one more consideration is. The obligation to enter a decree is apt when plaintiff establishes things he should and must A lawsuit is unlike a prise fight or a soccer match, where, if the rivel contestant fails to join engagement, the team in the filed or the fighter in the ring is declared a victor. Not so in a lawsuit. Even on admission of pleading in an Iqbaldawa, the declaratory suit will no be decreed. Plaintiff Kewal Singh claims a lease was executed on 26-5-1981 by Manager, State of Kheragarh. Could a lease be worked out at that time? Was the land surely Khairagarh's ? Was Manager competent to transfer by lease ? Is lease valid under U.P Tenancy Act, 1939 ? Say, the investigation affirms Kewal Singh's title to land. Will not subsequent fresh decision in consolidation subsume and supersede previously held title. Kewal Singh fairly admits name of Gaon Sabha is entered in How an enduring barrier of Section 49, C.H. Act standing a thwart a new claim can be demolished? 12. The application in restoration complains that plaint has not spelt out the names of village, pargana and tehsil where the land is situate. Kewal Singh fairly admits name of Gaon Sabha is entered in How an enduring barrier of Section 49, C.H. Act standing a thwart a new claim can be demolished? 12. The application in restoration complains that plaint has not spelt out the names of village, pargana and tehsil where the land is situate. It suddens me that trial judge was not careful enough to notice to which land the decree pertains. The entry of decree fails to preserve the "priority and place" which Shakespeare reminds us are indispensable to justice. 13. Learned S.D.O. Sri R.P. Shukla, the trial judge. On 30-6-1979 he is greatly moved in rejection restoration in view of proviso in Order 9, Rule 13, 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 its satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim." 14. The determination is not firm to see the facts of service with full and hard, close clarity. The willingness to discorn reality is, as always, requisite. The final wisdom is to know Code : the beginning of wisdom is to know the facts, to see them as they are. Do all the facts argue only an irregularity? where the defendants served ? He defendants, by publication, sufficient time to appear ? Sub-Divisional Officer stumbles on a point ; no service is effectual on Gaon Sabha. Still he ranges from one to another consideration, as a molecure to a moleculer motion, in words of justice O.W. Helmes, to record his satisfaction that service through advertisement is sufficient. On 30-7-1981 Additional Commissioner, entering dismissal order, affirms, in effect, that Collector and Pradhan were keeping themselves away for the purpose of avoiding service ; and substituted service is in all manner effectual. If seems they are simply repeating familiar phrases, thoughtlessly and automatically, as so often we in tone the religious creed or college songs. 15. In suit's restoration the burden is plaintiff's to examine the process serve and the witnesses of service on R.S. Mathur, DGC (Revenue) This obligation is not discharged, No mere irregularity but total non-service bulks large. 16. On 3-7-1981 revision suffers dismissal in Commissioner's. It is carried in Board of Revenue on 26-2-1991, a delay of ten years. 15. In suit's restoration the burden is plaintiff's to examine the process serve and the witnesses of service on R.S. Mathur, DGC (Revenue) This obligation is not discharged, No mere irregularity but total non-service bulks large. 16. On 3-7-1981 revision suffers dismissal in Commissioner's. It is carried in Board of Revenue on 26-2-1991, a delay of ten years. Counsel contends that delay is substantial as period of limitation is only three years under Article 137, Limitation Act. The contention is not cogent enough to be admissible. "There is no period of limitation prescribed for an application under Section 115 and it is not necessary that an application by a party should be filed," articulates Wanchoo C.J. In A.I.R. 1954 Raj 192. Opinions of similar import, AIR 1954 Madras 864 Full Bench, can be cited to document a contention that this court can exercise it's power of revision suo moto it the other conditions laid down in the section are satisfied. No limitation is actually prescribed under Schedule 11 or Appendix III to the Rules. Also D.C.C. (Revenue) Presses a motion under Section 5, Indian Limitation Act. It is disconcerting that on dismissal of state's appeal, D.G.C. (Rev). Lucknow did not flick his finger to lodge a revision within usual limitation. The application avers that information of dismissal was sent but not received by Collector and Pradhan because of postal miscarriage. Long after Collector is apprised on 29-5-1970. Enquiries, taking of a certified copy, legal advice and preparation of revision causes delay in presentation. In rebuttal the excuse and explanation is said to be dull beyond reason, Me think the cause of inordinate delay is inaction on the part of DGC (Revenue), Lucknow. AIR 1988 SC 901 condones substantial delay in filing appeal by reason of inaction on part of Government counsel. The delay even after 20-1-1971 for over a year was found not bona fide or compelled by reasons beyond control. Nevertheless delay is condoned. I am not for outright condonation of delay. But the fact shod that public interest is involved ; the ex parte decree is for 63 acres. Verily, the decree is tainted with extreme fraud in service on two defendants. The interest of public property is not to suffer for lack of interest in seeking prompt legal redressal. 17. I am not for outright condonation of delay. But the fact shod that public interest is involved ; the ex parte decree is for 63 acres. Verily, the decree is tainted with extreme fraud in service on two defendants. The interest of public property is not to suffer for lack of interest in seeking prompt legal redressal. 17. "They give priority to family over broader interests of society ; and while this is merely human, rather than Indian, it does water the ground for corruption in the Indian context." 18. An English correspondent Trevor Fishlock in his book Indian File" p 18 makes a charge, the case illustrates a conduct giving evidence in support thereof. 19. Counsel refers to 1982 RD 1. This in turn cities 1983 (1983) (9) A.L.R. 447 extracting Supreme Court observation: "Departmental authority may delay he moving of higher court for oblique motive and public interest may suffer if such case is thrown out on the ground of delay which is explainable." A Division Bench in State v. Phota, First Appeal No. 710 of 1979 decided on 7th March, 1991, remarks": "In the case of the State, however, while construing the cause shown the court should be alive to the impersonal nature of State machinery loaded as it is with inherited bureaucratic methodology inspired with note-making file, pushing and passing on the buck ethose. Thus some delay may be inevitable and this should receive more liberal construction." 20. I am not served of an appeal ; but a revision. The difference is crucial. 1983 AWC 725 involves delay in filing appeal by State. It is found that matter was being taken by department casually. It formulates and opinion that court can refuse to condone delay. The here are dissimilar ; Also a revision matters most as court's jurisdiction. I see 1978 RD 141 (SC)(DB). condoning a delay of six years on a motion under Section 5, Limitation Act. Instant case is retrieval of a situation that has gone away. It is reversal of a position reversed by decree dated 4-7-1970. The peculiar facts of this case particular case has its own selfhood. An observation in a setting cannot be taken out because it forms a pattern in which the diverse considerations are in an equilibrium. Instant case is retrieval of a situation that has gone away. It is reversal of a position reversed by decree dated 4-7-1970. The peculiar facts of this case particular case has its own selfhood. An observation in a setting cannot be taken out because it forms a pattern in which the diverse considerations are in an equilibrium. If any observation is removed from the neatly sorted out facts, it will produce a deadly effect in other association of facts. Sure enough, no case is an authority on an point of fact. A.I.R. 1963 S.C. 499. 21. A good number of legal precedents enunciate a doctrine of suits restoration when decree is based on fraud. The process of formulation threatens to continue apace in proportion as transgression of rules are threatening to go apace. Where fraud is central issue, evidence should only be clear and convincing. This measure of proof of an intermediate rule. The criminal standard of proof is beyond a reasonable doubt and civil is preponderance of the evidence. 1978 AWC 238 is in point. Hon'ble R.B. Mishra, J. elucidates. "If Pradhan brings to the notice of D.G.C. that Gaon Sabha property is being spirited away under cover of an illegal order obtained by the petitioner from S.O.C. there is nothing wrong on the part of D.D.C. in allowing the revision in exercise of his power under Section 48 read with Section 11 (e), C.H. Act. The law on the question of locus standi moves in the direction of protecting public interest and public property. AIR 1980 H.C 1622 and A.I.R. 1982 H.C. 149." 22. A decree fraudulently obtained can be set aside on a review even under the court's inherent powers under Section 151, C.P.C. AIR 1957 SC 825 and AIR 1971 Patna 382 mediate, nurture and express; "a court has inherent power to recall an order made earlier in the suit when it is found that the order has been passed in the absence of material which was subsequently placed before the court. The material being of a character justifying recalling of the previous order." In the case in hand, court is mislead to enter a decree on a grave misapprehension that defendants are truly served. The process of court is abused, rashly and extravagantly. It is my solemn duty to undo the decree 4-7-1970. 23. The material being of a character justifying recalling of the previous order." In the case in hand, court is mislead to enter a decree on a grave misapprehension that defendants are truly served. The process of court is abused, rashly and extravagantly. It is my solemn duty to undo the decree 4-7-1970. 23. Counsel calls to attention a letter 28 11-1991 by the then Hon'ble Chairman, Board of Revenue, to a Member to highlight the fact of on going consolidation to this court's notice for an order of abatement. The insistent insinuation is that letter trenches upon a judicial discretion. It was apt for D.G.C. to move for, that end. The letter seek only to bring a fact to notice. It is but a trifle. ORDER 24. Revision is allowed; order of courts below are set aside. Suit's restoration is granted. The decree dated 4-7-1970 goes down. The declaratory suit comes under consideration. The name be entered in as it was before 4-7-1970. 25. In view of issue of notification of consolidation, the suit is abated under section 5(2), C.H. Act.