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Rajasthan High Court · body

2003 DIGILAW 1023 (RAJ)

Chanda v. State of Raj.

2003-07-23

KAMAL NAYAN SHRIMAL, SHIV KUMAR SHARMA

body2003
Honble S.K. SHARMA, J.–Impugning the judgment dated November 1, 2001 of the learned Single Judge, it was canvassed on behalf of the appellants that all the legal representatives of deceased Brijendra were not brought on record by the Board of Revenue, Ajmer and without deciding the application dated June 13, 2000 moved on behalf of the appellant Chanda, the Board of Revenue committed illegality in rendering the judgment dated April 12, 2001. Reliance is placed on Daya Ram and others vs. Shyam Sundari and others (1). It is further contended that scope of first appeal was limited as objection in regard to Order 5 Rule 17 C.P.C. could not have been raised before the first appellate court. In support of this contention, learned counsel placed reliance on the judgment of this Court in the case of Berisal Singh vs. Prem Chand (2). (2). Turning on to the facts of the case, we find that on May 3, 1995 plaintiff Brijendra (now deceased) instituted a suit for declaration and perpetual injunction in the court of Sub- Divisional Officer Deeg on the ground that the suit lands were earlier in the ownership and possession of his father who died during the minority and the defendant Babu Lal (Maternal uncle of the plaintiff) was initially appointed general power of attorney by plaintiffs mother for managing the suit lands but subsequently the said power of attorney was cancelled. But during new settlement operation, the defendant managed to get the name of plaintiff removed from the revenue records. Therefore, in the suit the plaintiff made prayer to declare him as Khatedar Tenant of the lands and sought perpetual injunction against the defendant. The Sub-Divisional Officer issued summons for May 22, 1995. The process server returned the summons with an endorsement that on making refusal by the defendant, the summons got pasted on the outer part of his residential house. On the basis of the said report of the process server, the defendant was proceeded ex parte and suit of the plaintiff was decreed on June 9, 1995 (i.e. within 37 days). Thereafter, a first appeal was preferred by the defendant before the Revenue Appellate Authority, Bharat, which was dismissed vide judgment and decree dated October 18, 1996. The defendant then filed second appeal before the Board of Revenue, Ajmer. Thereafter, a first appeal was preferred by the defendant before the Revenue Appellate Authority, Bharat, which was dismissed vide judgment and decree dated October 18, 1996. The defendant then filed second appeal before the Board of Revenue, Ajmer. Learned Board of Revenue vide judgment dated April 12, 2001 allowed the second appeal and remitted the case back to the court of Sub-Divisional Officer, Deeg. Assailing the said judgment of Board of Revenue, the appellants preferred Writ Petition which was dismissed by the learned Single Judge vide judgment dated November 1, 2001. (3). It is not disputed that Amlesh, daughter of deceased Brijendra was already on record before the Board of Revenue and appellant Smt. Chanda (wife of deceased plaintiff) also filed an application on June 13, 2000 for bringing her on record as legal representative of the deceased. The Board of Revenue, without considering the said application, allowed the second appeal. (4). The questions that need our answer are :- (i) Whether the arguments in regard to improper service of summons could be advanced before the first appellate court and (ii) was it necessary for the second appellate court to implead all the legal representatives of the deceased on record. (5). A look on sub-section (2) of Section 96 of the Civil Procedure Code demonstrates that an appeal may lie from the original decree passed ex parte. The defendant against whom an ex parte decree is passed has three options: (i) he may file application seeking setting aside the ex parte decree under Order 9 Rule 13 C.P.C.; or (ii) he may file review petition under Order 47 rule 1 C.P.C. or (iii) he may prefer appeal under Section 96(2) of the Civil Procedure Code. (6). If appeal is filed under Section 96(2), the defendant may satisfy the appellate court that summons was not properly served on him. If the process server did not comply with the provisions of Order 5 rule 17 C.P.C., the ex parte decree may be set aside by the appellate court. Order 5 Rule 17 provides as under:- ``R. 17. (6). If appeal is filed under Section 96(2), the defendant may satisfy the appellate court that summons was not properly served on him. If the process server did not comply with the provisions of Order 5 rule 17 C.P.C., the ex parte decree may be set aside by the appellate court. Order 5 Rule 17 provides as under:- ``R. 17. Procedure when defendant refuses to accept service, or cannot be found.-Where the defendant or his agent or such other person as aforesaid refused to sign the acknowledgment, or where the service officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made 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 the original to the Court from which it was issued, with a report endorsed thereon of annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the persons if any by whom the house was identified and in whose presence the copy was affixed. The case of Berisal Singh (supra) is distinguishable. In that case, an irregularity in the matter of service was committed before the first appellate court and the appellate court proceeded exparte against the respondents. The respondents without resorting the procedure enumerated in Order 41 rule 21 C.P.C., straightway forward filed second appeal and made a request to remand the case for fresh decision. The prayer was declined by the learned Single Judge on the ground that in the second appeal, matter could not have remanded for fresh decision as the appellant did not take recourse of the provisions contained in Order 41 Rule 21. The prayer was declined by the learned Single Judge on the ground that in the second appeal, matter could not have remanded for fresh decision as the appellant did not take recourse of the provisions contained in Order 41 Rule 21. The analogy adopted by the learned Single Judge while disposing of the second appeal is not applicable in the matter of ex parte decree against which an appeal is maintainable under Section 96(2) C.P.C. and no substantial question of law is required to be framed as is necessary under Section 100 C.P.C. while entertaining second appeal. (7). The process server in the instant case appears to have flouted the provisions contained in Order 5 Rule 17 C.P.C. as the house on which summon was pasted, was not identified by any body. (8). That takes us to the second question as to whether all the legal representatives of the deceased plaintiff were required to be impleaded. In Dayaram vs. Shyam Sundari (supra) their Lordships of the Supreme Court in a similar situation indicated as under :- (Para 12) ``(12) The next question is about the effect of the appellant having omitted to include two of the heirs of Shyam Sundari, a son and a daughter who admittedly had an interest in the property and the effect of this matter being brought to the notice of the Court before the hearing of the appeal. The decisions to which we have referred as well as certain others have laid down and we consider this is also correct, that though the appeal has not abated when once it is brought to the notice of the Court hearing the appeal that some of the legal representatives of the deceased respondent have not been brought on record, and the appellant is thus made aware of this default on his part, it would be his duty to bring these others on record, so that the appeal could be properly constituted. In other words, if the appellant should succeed in the appeal it would be necessary for him to bring on record these other representatives whom he has omitted to implead originally. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. The result of this would be that the appeal would have to be adjourned for the purpose of making the record complete by impleading these two legal representatives whom the appellant had omitted to bring on record in the first instance. This is the course which we would have followed but we had regard to the fact that the suit out of which this appeal arises was commenced in 1939 was still pending quarter of a century later ad having regard to this feature we considered that unless we were satisfied that the appellant had a case on the merits on which he could succeed, it would not be necessary to adjourn the hearing for the purpose of formally bringing on record the omitted legal representatives. We therefore proceeded to hear the appeal and as we were satisfied that it should fail on the merits we did not think it necessary to make the record complete.. In the case on hand as earlier noticed, the deceased plaintiff was represented by his daughter before the Board of Revenue. It also appears from record that the counsel who represented the daughter of the deceased plaintiff, submitted application on behalf of the appellant Smt. Chanda (wife of the deceased plaintiff). We find that attention of Board of Revenue was not drawn towards the said application by the appellant Smt. Chanda which was filed on June 13, 2000. It was left pending till April 12, 2001 when record was disposed of by the Board of Revenue. Even otherwise, no prejudice was caused to Smt. Chanda as the case was only remanded and she can still make application before the Sub-Divisional officer for bringing her on record as legal representative of deceased. Impleading Smt. Chanda as party was mere formality and no illegality was committed by the Board of Revenue in not deciding the application by Smt. Chanda. (9). Sub-Divisional Officer Deeg acted in utter haste in decreeing the suit of the plaintiff within 37 days and this fact reminds us the maxim: ``Justice hurried is justice buried. We are of the view that the court should strike balance between the two maxims ``Justice delayed is justice denied. and ``Justice hurried is justice buried. (10). In view of what we have discussed hereinabove, we find no merit in the instant appeal and it stands dismissed accordingly with no order as to the costs.