SINGHAL, Member – This revision has been filed under Section 84 of the Rajasthan Land Revenue Act, 1956 (in short ``the Act) against the order of Addl. Collector, Alwar dated 25.7.97. (2). Briefly stated, the facts of the case are that the land in dispute being a custodian land was allotted to the petitioner on 19.5.97 and the `sanad (Patta) No. 1070 was issued in his favour on 19.5.79. Thereafter mutation was opened in his favour on 13.10.82 by mutation No. 59. The non-petitioners filed an appeal in the court of S.D.O. against the above mutation. The said appeal was rejected on 8.4.85 by the S.D.O. on merits. Aggrieved by this order, the non-petitioners filed an appeal before Addl. Divisional Commissioner, Jaipur, who dismissed the appeal on 21.12.87 for want of prosecution. Subsequently, after a lapse of time another appeal was filed by the non-petitioners before the Addl. Collector, Alwar without indicating earlier history of the case and the appeal was accepted on the point of limitation without hearing the petitioner on 5.8.96. When the petitioner came to know of this order on 3.10.96, he submitted an application before the Addl. Collector, Alwar along with an application under Section 5 of Limitation Act for setting aside the exparte decision. The lower court vide order dated 7.2.97 accepted the application. Subsequently, the non-petitioners submitted a review application in respect of the above order before the same court, the Addl. Collector vide his impugned order dated 25.7.97 accepted the review and rejected the original application submitted by the petitioner. Aggrieved by this, the petitioner has submitted this revision against the impugned order. (3). I have heard the learned counsel of both the parties and have gone through the record of the case and also perused the impugned order. (4). It is not disputed that the non-petitioners previously filed an appeal in the court of S.D.O. against Mutation No. 59, which was opened on 13.10.82. It is also not in dispute that their appeal was rejected by the S.D.O. and thereafter they went in appeal before Addl. Divisional Commissioner, Jaipur, who also dismissed the appeal on 21.12.87. But subsequently, another appeal was filed by the non-petitioners before the lower court without indicating the earlier history of the case and the same was accepted by the learned Addl.
Divisional Commissioner, Jaipur, who also dismissed the appeal on 21.12.87. But subsequently, another appeal was filed by the non-petitioners before the lower court without indicating the earlier history of the case and the same was accepted by the learned Addl. Collector, Alwar treating it within limitation and without affording an opportunity of being heard to the petitioner. The learned lower court set aside the order passed on 5.8.96 in absence of the petitioner on an application filed by the petitioner on the ground that the petitioner was not given opportunity of being heard and notice has not been served on him and these is no order on the file of the court that the notice has been served upon him. Thereafter, the non-petitioners submitted review application and the Addl. Collector accepted the review on the ground that duly served summon has been produced by the non-petitioners before the court along with an affidavit which does to show that this summon was on the file before the order dated 5.8.96 and thereafter this summon has been taken out from the file. (5). After going through the file of the lower court it comes out that the summons has been produced along with review application and in this connection an affidavit of the non- petitioner Suraj has also been filed and thereafter an affidavit of Shri Bhagwan S/o Narain Brahmin R/o Bhiwadi Tehsil Tijara Distt. Alwar has also been filed. The learned lower court has accepted the review application submitted by the non-petitioners solely on the basis of this summon and has come to the conclusion that before passing the order dated 5.8.96 by the court the summons were duly served on the petitioner and the petitioner has played an act of fraud and misrepresentation by taking out these summons from the file. (6). The learned counsel of the petitioner has argued that the lower court has exceeded jurisdiction while passing the impugned order. He has contended that there is no application under Order 41 Rule 27 CPC for taking the summons on record except this, these summons cannot be taken on record because it is the manipulation which has been played by the non-petitioners. He has also argued that the so-called duly served summons do not fulfil the requirements of Order 5 Rule 20 CPC. In this connection he has Banshi alias Banshi Nath vs. Chhagannath (1).
He has also argued that the so-called duly served summons do not fulfil the requirements of Order 5 Rule 20 CPC. In this connection he has Banshi alias Banshi Nath vs. Chhagannath (1). The learned counsel of non-petitioners has supported the order under revision. (7). I have considered the rival contentions of both the parties and have also gone through the case law cited before me. (8). The learned counsel has placed reliance on the summons, which is said to be served on the petitioner for 28.5.96. It has also been mentioned in the impugned order that before passing the order dated 5.8.96, these summons were available on the file and thereafter it has been taken out from the record. After perusing the file of the learned lower court, it comes out that in any order sheet it has nowhere mentioned that the summon has been duly served on the petitioner. Had there been the summons of the petitioner on the file, there was no occasion to mention in the order sheet that the petitioner has been duly served with the summons. Secondly, these summons cannot be said to be personally served on the petitioner. It has been mentioned on the back of the summons that ^^ysg: S/o nyk ekSd ij feyk mlus ,d izfr ysus ls gekjs lkeus euk fd;k blfy;s ,d izfr mlds [kqys edku ij pLik fd;k x;k^^ In this connection Order 5 Rule 17 of CPC is relevant which says. ``where the defendant or his agent or such other person as aforesaid refuses to sign the acknowledgment or where the serving officer after using all due and reasonable diligence, cannot find the defendant and there is no agent empowered to accept the service of the summons on his behalf, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain and shall, then return original to the court from which it was issued with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances in which he did so and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. (9).
(9). Further under Order 5 Rule 19 CPC, it has been mentioned that ``where summon is returned under rule-17, the court shall, if return under that rule has not been verified by the affidavit of the serving officer and may, if it has been so verified, examine the serving officer on oath or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit and shall either declare that the summons has been duly served or order such service as it thinks fit. In the present case, the summons are said to be returned under Rule-17, but the return has not been verified by the affidavit of the serving officer and neither the serving officer has been examined on oath by the court. On the back of the summons there is no report of the serving officer that by whim the house was identified. Therefore, the learned lower court has wrongly and without jurisdiction has relied on these summons. The Single Bench of this Board in RBJ (5) 1998 page 499 (supra) has held that substituted service could not be made unless and until there is specific order from the court. Besides this, if service at all made, then also minimum requirements, which are provided under the law, should have been complied with. In the said notice, there was no signature of two independent witnesses or identification of the house over which such affixation is made. In brief, affixation so made according to law is not having the sanction of law neither legal procedure was complied with. In every proceeding service of summons are very important because by this process reasonable opportunity of being heard is given to the parties. This is a fundamental right of every citizen that before he is heard he should have given proper notice for hearing. (10). The learned lower has erred in taking on record the summons, which has been produced by the non-petitioners. There was no application under Order 41 Rule 27 CPC for taking these summons on record. Except this, in 1994 RRD 690 (2), it has been held that no fresh evidence could be taken in review under Order 41 Rule 27 CPC which applied to first or second appeal.
There was no application under Order 41 Rule 27 CPC for taking these summons on record. Except this, in 1994 RRD 690 (2), it has been held that no fresh evidence could be taken in review under Order 41 Rule 27 CPC which applied to first or second appeal. In 1993 RRD 447 (3), the Division Bench of the Honble Rajasthan High Court has held that well established principle of law is that the review cannot be allowed by reviewing judgment and reversing its earlier judgment by appreciating the evidence led by the parties. Nothing could be reversed on the basis of evidence led under Order 41 Rule 27 CPC which applies to first or second appeal, it does not apply to the review proceedings. Therefore, taking of evidence by means of application under Order 41 Rule 27 CPC was illegal and not permissible. (11). The learned lower court has exceeded jurisdiction while accepting the review application. The scope of review is very limited. It is clearly established law that in a review the court cannot sit in appeal over a decision sought to be reviewed. An error can be said to be apparent on the face of record only when it can be noticed without delving in the record and trying to find circumstances in which it was given. Decision of admissibility of document cannot be said to be a mistake of law apparent on the face of record. An apparent on the face of record may have occurred on account of an inadvertency or it should be an evident error, which does not require any extraneous matter to show its correctness. No review lies if the decision of the court is erroneous, if the court was aware of what it was doing. Thus the review petition can only be entertained on the ground of error apparent on the face of record and not on any other ground. An error which has to be established by a long drawn process of reasoning on point where there may conceivably be two opinions can hardly be said to be an error apparent on the face of record. In this connection reference may be made to Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary (2). (12). In the light of this settled legal position, the revision filed by the petitioner is accepted and the order of Addl.
In this connection reference may be made to Smt. Meera Bhanja vs. Smt. Nirmala Kumari Choudhary (2). (12). In the light of this settled legal position, the revision filed by the petitioner is accepted and the order of Addl. Collector, Alwar dated 25.7.97 is set aside. Pronounced in the open court.