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2003 DIGILAW 326 (RAJ)

Bhanwar Singh v. Mohan Singh

2003-02-27

S.C.SINGHAL

body2003
SINGHAL, Member – The application, Bhanwar Singh, has filed this revision under Section 84 of the Rajasthan Land Revenue Act, 1956, (in short ``the Act), against the judgment dated 31.7.2001 passed by District Collector, Pali in appeal No. 16/2000, by which his application dated 5.7.2001 has been dismissed. (2). In short, the facts of the case are that an appeal is pending before the lower court in which applicant-respondent did not file the copy of the judgment of court of the first instance against whom the appeal is directed, as envisaged under Section 30 of the Rajasthan Revenue Courts Manual, 1956 (Part-II). The appeal was admitted by the trial Court and was fixed for requisitioning of the record of the lower court on 5.7.2001. The applicant/respondent filed an application stating that the copy of the judgment of court of the first instance has not been filed by the respondent, therefore, the appeal is not maintainable. The learned lower court, after hearing both the parties, dismissed the application by its impugned judgment. Against which, this revision has been filed. (3). I have heard the learned counsel of both the parties and have gone through the record and also the impugned judgment. (4). It is true that the respondent has challenged the allotment order of Tehsildar, Pali dated 16.8.86 in the lower court under Section 75 of the Act and the copy of the order of Tehsildar has not been filed but an application for dispensing with the certified copy of the allotment order has been filed along with an affidavit in which it has been alleged that the respondent Mohan Singh had applied for obtaining copy of the order in the Tehsil on 1.5.2000 but he was informed on 29.5.2000 that such record is not tranceable and his application for obtaining copy has been filed. The learned lower court has also tried to requisition the allotment record from Tehsildar but could not get success. In the lower court Tehsildar has informed the court, vide its letter dated 24.4.2001, that the record is not available neither in the Tehsil nor with the patwari, and disciplinary action has also been taken against the then L.D.C., as has been stated in the impugned judgment. In these circumstances, how it can be expected from the respondent to file the certified copy of the allotment order dated 16.8.86. (5). In these circumstances, how it can be expected from the respondent to file the certified copy of the allotment order dated 16.8.86. (5). The learned counsel of the applicant has argued that in absence of the certified copy of the order of Tehsildar the appeal is not maintainable in the lower court as Rule 30 of the Revenue Courts Manual is mandatory. He has cited Bheru Lal vs. Danmal (1). On the contrary, the learned counsel of the non- applicants has contended that in the circumstances as has been enunciated in the impugned judgment the respondent could not be attributed any negligence on their part and they cannot be compelled to file the certified copy of the order of the court of first instance. He has argued that Rule 30 of the Rajasthan Revenue Courts Manual cannot be termed as mandatory but it is a directory; therefore, substantial justice could be done with the respondent. He has cited Ramswaroop and Ors. vs. Board of Revenue (2). (6). I have considered the rival contentions of both the parties and also have gone through the case laws cited before me. (7). In 1980 RRD 228 (3), the Larger Bench of the Board of Revenue has held that Rule 30(C) of Rajasthan Revenue Courts Manual (Part-II) is mandatory and failure to submit copy of the order of court of first instance, not a curable defect and fatal and cannot be rectified in the interest of justice by court. But in Shil Kumari and Ors. vs. LRs of Kailash Singh and Ors. (4), it has been held that the Rule 30 of Rajasthan Revenue Courts Manual (Part-II) should be considered as directory in nature and not mandatory. Once an appeal is entitled it cannot be rejected merely on the ground that the decree has not been attached to the appeal. If the appeal was not maintainable for want of copy of decree, it could not have been registered. Once having been registered it has to be decided on merits. Once an appeal is entitled it cannot be rejected merely on the ground that the decree has not been attached to the appeal. If the appeal was not maintainable for want of copy of decree, it could not have been registered. Once having been registered it has to be decided on merits. No doubt, in this case, the previous judgment of the board in 1980 RRD 228 (5), was not discussed but 1981 RRD 351 (6), has been followed in which the Honble Rajasthan High Court while interpreting Rule 17 proviso 36, 37 and 39 of the Revenue Courts Manual (Part-I) has held that the revision could not be dismissed by Board where revision registered and admitted and stay granted and as such can be presumed to be dispensed with implicitly under proviso to Rule 17. In Rule 17(c) of the Rajasthan Revenue Courts Manual (Part I) it is mandatory to file copy of the judgment of the court of first instance when the appeal or application is directed against an appellate order or decree but the Honble High Court has considered it as directory in nature and not mandatory. In the same analogy Rule 30 of the Rajasthan Revenue Courts Manual (Part II) can be considered as directory in nature and not mandatory in the circumstances of the case. Rule 17 of Rajasthan Revenue Courts Manual (Part I) and Rule 30 of Rajasthan Revenue Courts Manual (Part II) is analogous and no differential treatment is needed while interpreting both the rules. Since the view taken by the Honble Rajasthan High Court in 1981 RRD 551 (7), is later than that of the view taken in 1980 RRD 228 (supra), by the Larger Bench of the Board of Revenue, therefore, no credence can be given to that view particularly in the circumstances when 1980 RRD 228 has been discussed by the Honble High Court in its judgment. (8). In the result, the revision fails and is hereby dismissed. Pronounced in the open court.