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2002 DIGILAW 987 (ALL)

INTERPRETATION OF SECTON 201 U P L R ACT v. STATE

2002-08-08

NAVNEET SAHGAL, P.C.SHARMA, S.N.SHUKLA, S.P.ARYA

body2002
S. N. SHUKLA, MEMBER., J. The question referred for decision by this Full Bench is: "does the decision of the Full Bench of the Board in Ashok Kumar v. Smt. Sheoranya, 1996 RD 504 (FB), interpret the law correctly or setting aside or revocation of an ex-parte order amounts to its reversal or alteration requiring prior notice to the other party as per proviso to Section 201 of the UPLR Act?" 2. To answer this question one needs to have a look at the proviso to Section 201 of the UPLR Act which is reproduced below: "provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it. " 3. In the case of Ashok Kumar v. Smt. Sheoranya, 1996 RD 504, Ashok Kumar had applied for mutation on the basis of Will which was allowed in the absence of any objection. Subsequently, a restoration application was moved by Smt. Sheoranya on the ground that she is widow of the recorded tenant who never executed any Will and, therefore, the ex-parte order in favour of Ashok Kumar be set-aside. The restoration was allowed and mutation order in favour of Ashok Kumar was set-aside. Ashok Kumars revision against this order was dismissed by the Addl. Collector but was allowed by this Court. The matter was thereafter referred to the Full Bench. It was contended, inter alia, on behalf of Ashok Kumar that no notice was given to him before setting-aside the mutation order in his favour. This contention was negatived by the Full Bench. The relevant parts from the judgment are extracted below: "23. It clearly means hear when you alter or reverse. And do not hear when not altering or reversing the ex-parte order. And setting-aside an ex-parte order is neither reversing nor altering. I will illustrate. There is a line with points A to B. There will be reversal when line is redrawn B to A and alteration is when ex-parte order directs entry of names of three heirs of deceased tenant. The subsequent order be for two heirs of a deceased tenant. This is alteration of previous order. But when ex-parte order is merely set aside, there entail neither reversal nor alteration. The subsequent order be for two heirs of a deceased tenant. This is alteration of previous order. But when ex-parte order is merely set aside, there entail neither reversal nor alteration. It means as you were, run again, it is to erase the alphabets A-B. And on my side is Mr. Justice B. L. Gulati, J. in 1972 RD 361. "when an ex-parte order has been set aside, it cannot be said that the decree has been varied or reversed. " (24) There is no parallel provision under Section 201 Land Revenue Act to Order IX Rule 14 CPC relating to a lawsuit. That is demanding in nature. No decree shall be set-aside on any such application as aforesaid unless notice thereof has been served on the opposite party. In some, hearing the side in whose favour the judgment is absolutely necessary. The conception of a law suit is not for a summary proceeding. That is one important aspect of a difference. 4. From the Bar Shri B. L. Shukla drew the attention of the Bench to the fact that there are conflicting rulings of this Court on the question referred to the Bench and hence there is a need to clarify the correct legal position for the guidance of the Revenue Courts and the members of the Bar. He also handed over copies of these rulings which are discussed in this judgment. 5. The decision of the Full Bench in the case of Ashok Kumar had simply endorsed the view of Sri. A. U. Khan, Member (J) in the case of Smt. Asha v. Rajrani, 1994 RD 328. A similar view was expressed by the Division Bench consisting of Sri Desh Raj Singh, Member and Sri. A. U. Khan, Member (J) in 1995 RD 215. It needs to be mentioned that all these decisions did not consider some earlier decisions of this Court (referred to later in this judgment) wherein a contrary view was taken. These subsequent decisions were, therefore, judgments per incuriam. 6. A plain reading of the proviso to Section 201 shows that an order passed under Section 200 ex-parte or by default can not be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it. The question now is whether setting aside or revoking an order amounts to its reversal or alternation. The question now is whether setting aside or revoking an order amounts to its reversal or alternation. The dictionary meanings of alter, reverse, revoke per Oxford Dictionary are as follows: Alter - Change in character, position and modify. Reverse - turn the other way round or up or inside out, invert, transpose, revoke annul. Revoke - rescind, withdraw, cancel. 7. The word "alter" has been defined in P. Ramnath Aiyars the Law Lexicon second edition (reprint 2001) as to make a change in; to modify; to vary in same decree. Similarly, "reversed" has been described as "to turn back, to act in a opposite direction, to undo, annul. " The word "reverse" means setting-aside of the order or the decree by the Court which passed it and also by the Court of higher Forum either in appeal or revision. Jagat Bandhu v. Ram Nageena, AIR 1977 Cal. 281 . 8. The words "alter" "reverse", "set-aside" have been described as follows in Blacks Law Dictionary (Centennial Edn 1991) Alter - To make a change in, to modify, to vary in some degree. . . . Reverse - To overthrow, vacate, set aside, make void, annul, repeal or revoke Set aside - To reverse, vacate, cancel annul or revoke a judgment order etc. 9. It is, thus, abundantly clear that setting-aside an ex-parte order amounts to its reversal. The logic mentioned in para 23 of the judgment of the Full Bench in Ashok Kumars case is rather fallacious. After a line has been drawn from point-A to point B travelling back to the position of point A means reversal. One cannot go back to point A without travelling in the reverse direction. The order of mutation in favour of a party means travelling to point B. Now if it is undone he has obviously to go back to earlier position of point A. Therefore, to say that when an ex-parte order is merely set-aside it entail neither reversal not alteration is obviously not correct. It is not a question of erasing alphabets A and B, but of retracing ones steps from B to A without which one cannot reach the original position which is the precise result when an order is set-aside. In any case, setting aside also involves alteration as it means change in the earlier position. 10. The observation of Mr. It is not a question of erasing alphabets A and B, but of retracing ones steps from B to A without which one cannot reach the original position which is the precise result when an order is set-aside. In any case, setting aside also involves alteration as it means change in the earlier position. 10. The observation of Mr. Justice Gulati in 1972 RD 361, quoted in para 23 has been misquoted totally out of context to give it a totally different unintended meaning. This is quite clear from following subsequent sentences in the judgment : "a decree can be varied or reversed on appeal or in some similar proceedings. When an ex-parte decree is set-aside, a new decree is passed thereafter and that decree cannot be said to be the result of any variation or reversal of any prior decree". What was meant is that when a new decree is passed after setting aside an ex-parte decree, that decree does not mean variation or reversal of the prior decree. A restitution in such case may be claimed under Section 151 and Section 144 (2) CPC will not be applicable in such cases. The judgment did not at all say that an ex-parte decree can be set-aside without giving notice to the opposite party which is mandatory under Order IX Rule 14 CPC referred to in para 24 of the Full Bench judgment itself. 11. Similarly, the conclusion in para 24 of the decision of the Full Bench that the proviso to Section 201 of the UPLR Act is not parallel to that in Order IX Rule 14 CPC is also not correct. Under both the provisions an order or decree cannot be set-aside without notice to the opposite party. There is, therefore, no difference on this account between a regular suit and a summary proceeding under the LR Act. The view to the contrary expressed in para 24 of the Full Bench decision was, therefore, not really correct. 12. The upshot of the above discussion is that setting-aside of an order does mean its reversal and, therefore, prior notice to the party in whose favour earlier judgment has been given, is necessary according to proviso to Section 201. This correct view on the point at issue was taken in some earlier decisions of this Court. 12. The upshot of the above discussion is that setting-aside of an order does mean its reversal and, therefore, prior notice to the party in whose favour earlier judgment has been given, is necessary according to proviso to Section 201. This correct view on the point at issue was taken in some earlier decisions of this Court. In Jagdamba Prasad v. Umashankar, 1989 Vidhi Nirnay Samaykee 271, it was held that after mutation was ordered in favour of the revisionist, it could not be cancelled without service of summons on him. In Smt. Zunia v. Smt. Sakeela, 1986 ABN 153, it was further held that no hearing of restoration application for setting-aside an ex-parte order of mutation could be done on the basis of service of summons by affixation where not confirmation of Pradhan or Up-Pradhan for refusal of summons is recorded. However, the provisoto Section 201 is not applicable to a case where application of mutation has been dismissed for default of the applicant before filing of any objection. But where an application for mutation is dismissed for default of the applicant/parties after the filing of an objection the proviso to Section 201 will be applicable as such dismissal in effect means a judgment in favour of the objector. Therefore, the view taken in Daswant v. Raghunandan, 1966 ALJ 11, is not quite correct. In that case both the parties were absent and it was held that the proviso was not applicable as no judgment has been passed on merits. But this does not seem to be the correct interpretation. The proviso does not say that the judgment in favour of the other party should have been passed on merits. Since there is no such legal requirement in the proviso notice to the objector will be necessary even where an application has been dismissed for default of the parties. No such notice, however, is required where any application/appeal, review is dismissed in default before the other party has put in appearance, because the Proviso pre-supposes the existence of the other party in whose favour the judgment sought to be set-aside has been passed. 13. Thus, the answer to the question referred to this Full Bench is that the decision of the Full Bench of the Board of Revenue in Ashok Kumar v. Smt. Sheoranya, (supra) does not interpret the law correctly. 13. Thus, the answer to the question referred to this Full Bench is that the decision of the Full Bench of the Board of Revenue in Ashok Kumar v. Smt. Sheoranya, (supra) does not interpret the law correctly. Setting-aside or revoking an ex-parte order amounts to its reversal requiring prior notice to other party as per proviso to Section 201 of the U. P. L. R. Act. The view expressed to the contrary in some decisions of this Court referred to above is hereby overruled. Question answered. .