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2001 DIGILAW 587 (PNJ)

Dhan Kaur v. Malkiat Singh

2001-05-23

I.S.BINDRA

body2001
ORDER I.S. Bindra, FC - This is a revision petition under Section 84 of the Punjab Tenancy Act against the order dated 15-2-2000 passed by the Commissioner, Ferozepur Division, Ferozepur. 2. Just to appreciate the issues involved in this case, the brief facts of the case are that the respondents Malkiat Singh and others i.e. present respondents No. 1 to 6 filed a suit under Section 77(3)(d) of the Punjab Tenancy Act, 1887 for declaration that they were occupancy tenants and subsequently have become full fledged owners in respect of the suit land measuring 141 Kanals 8 Marlas according to the shares as Jamabandi for the year 1987-88 situated in the Revenue Estate of village Manochahal subject to the adjustment of land alienated. Notice of service in respect of the said suit was issued and on the basis of report of service of notice on Smt. Dhan Kaur the present petitioner, the petitioner was proceeded against ex-parte as the petitioner failed to put in appearance. After recording ex-parte evidence Assistant Collector-I Grade, Zira accepted the suit filled by Malkiat Singh and others and decreed their suit vide his orders dated 11-12-1992. 3. The petitioner Dhan Kaur filed an application for setting aside the ex- parte order in the year 1999 after the lapse of over six years alleging that no proper service of summons have been effected on her and that, therefore, ex-parte order dated 11-12-1992 be set aside. The application filed by Dhan Kaur was dismissed by the Assistant Collector-I Grade, Zira vide his order dated 21-6-1999 after holding that the applicant Dhan Kaur had been duly served through her son and she was very well aware of the proceedings and order dated 11-12-1992. 4. Aggrieved with the order dated 21-6-1999 of Assistant Collector-I Grade, Zira, Dhan Kaur went in an appeal before the Collector, Ferozepur who accepted the same and set aside the ex-parte order dated 11-12-1992 and 21-6-1999 and remanded the case to Assistant Collector-I Grade, Zira for fresh trial vide his order dated 11-11-1999. 5. Dissatisfied with the order dated 11-11-1999 of Collector Ferozepur, the respondents Malkiat Singh and others filed an appeal against the said remand order in the court of Commissioner, Ferozepur Division, Ferozepur. Alongwith the appeal Malkiat Singh and others also filed an application for staying the order of Collector. 6. 5. Dissatisfied with the order dated 11-11-1999 of Collector Ferozepur, the respondents Malkiat Singh and others filed an appeal against the said remand order in the court of Commissioner, Ferozepur Division, Ferozepur. Alongwith the appeal Malkiat Singh and others also filed an application for staying the order of Collector. 6. While admitting the appeal for regular hearing on 15-2-2000, the Commissioner also stayed operation of the order impugned in the appeal. Now the present petition is against this in terlocutory order dated 15-2-2000 that the legal representatives of Smt. Dhan Kaur have filed before this court contending inter alia that no appeal lies in the court of Commissioner against the remand order passed by the Collector whereby the ex-parte order dated 11- 12-1992 has been set aside. It was further alleged that the appeal filed in the court of Commissioner was time barred and that the Learned Commissioner has not noticed the law cited by the counsel for the present petitioners, at the bar. 7. I have heard the counsel for both the parties and have also gone through the record of the case carefully. 8. Arguing for the petitioners, Sh. Sandeep Punchhi, Advocate has contended that the provisions of the Code of Civil Procedure are applicable to the proceedings under the Punjab Tenancy Act and as per the provisions of the Code of Civil Procedure, no appeal lies against an order accepting an application for setting aside an ex-parte decree. The Learned Collector had accepted the application filed by the petitioners under Order 9 Rule 13 of CPC and, therefore, in view of the provisions of Order 43 Rule 1 no appeal lies against the order passed by the Collector. In support of his contention, the Learned Counsel has drawn my attention to a ruling of the court of Financial Commissioner reported as 1932 LLT page 120. The Learned Counsel has further contended that the appeal filed by the respondents in the court of Commissioner was time barred and that an objection to this effect was raised on behalf of the present petitioner, however, the Learned Commissioner had admitted the appeal and had also granted a stay without deciding this point of limitation which was a grave irregularity. 9. On the other hand resisting and rebutting the claim of the Counsel for the petitioner, Sh. 9. On the other hand resisting and rebutting the claim of the Counsel for the petitioner, Sh. S.S. Chandi, Advocate Counsel for the respondents has pleaded that the provision of Code of Civil Procedure had been made applicable to the proceedings under the Punjab Tenancy Act by insertion of Section 88 in the Punjab Tenancy Act wherein it has been provided that the Code of Civil Procedure, shall, so far as it is applicable, applied to all proceedings in revenue courts whether before or after decree. However, in the same provision, the Code of Civil Procedure has been made applicable subject to the rules made under the Tenancy Act and the provisions of the Tenancy Act itself, Therefore, the provisions of Code of Civil Procedure dont have an overriding effect. Moreover, the Code of Civil Procedure is applicable only to the procedure and incidental matters. But where a substantive provision such as Section 80 of the Punjab Tenancy Act 1887 has been made, the provisions of Code of Civil Procedure become applicable only subject to the substantive provision. Therefore, an appeal can be filed in the Court of Commissioner if the order is reversed by the Court of Collector as provided in Section 80 of the Punjab Tenancy Act. The appeal filed by the respondents in the Court of Commissioner is in accordance with the provisions of the Tenancy Act. In support of his contention, the Learned Counsel for the present respondents also cited a ruling of the Honble High Court of Punjab and Haryana reported as 1969-PLJ- 476 in which it has been observed as follows :- "Code of Civil Procedure has been made applicable to proceedings in Revenue Court whether before or after the decree. Sub-Section (2) of Section 88 making Civil Procedure Code applicable is to be read subject to any Rules made under Sub-Section (1) of that Section or to the other provisions in the Act. It is only for the conduct of the proceedings and incidental matters before the Revenue Officers exercising judicial function that the Code of Civil Procedure has been made applicable. By exacting (enacting ?) Section 88(2) it could not be intended to give a right of appeal and create new forums therefor in spite of there being specific provision for appeals as contained in Section 80" 10. By exacting (enacting ?) Section 88(2) it could not be intended to give a right of appeal and create new forums therefor in spite of there being specific provision for appeals as contained in Section 80" 10. The Counsel for the respondents has further submitted that the appeal filed by the present respondents before the Learned Commissioner was well within time. However, still if the present petitioners wanted to raise any such question, they may raise in the Court of Commissioner and this point can be decided by the Learned Commissioner while finally disposing of the appeal pending before him. 11. I have considered the matter in the light of the points raised by counsel for both the parties. Facts on record have also been carefully perused. I am of the opinion that no case for any intervention in the impugned order is made out. The pleadings of the petitioner do not indicate any illegality or impropriety while admitting and granting stay in an appeal filed by the respondents in the Court of Commissioner, Ferozepur Division, Ferozepur. The plea raised by the counsel for the petition that no appeal lies in the court of Commissioner against the order of Collector whereby the Collector accepts an appeal and sets aside an ex-parte decree on the application filed by the respondents under Order 9 Rule 13 of the CPC, as against such as order no appeal lies under Order 43 Rule 1 of the CPC, is not tenable. An appeal is provided for under Section 80 of the Punjab Tenancy Act and in view of the provisions of Section 88 of Punjab Tenancy Act, the applicability of the Code of Civil Procedure has been made subject to the provisions of Punjab Tenancy Act and the Rules made thereunder. The view taken by the Honble High Court of Punjab and Maryana as reported in 1969-PLJ-476 is fully corroborative with the facts and circumstances of the present revision. Accordingly, the revision petition is dismissed. However, the point whether or not the appeal filed by the respondents is time barred, can be decided by the Learned Commissioner while finally disposing of the appeal and no interference by this court at this stage is called for. The Commissioner is directed to decide the appeal within a period of three months from the receipt of a copy of this order. Order accodingly.