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2003 DIGILAW 670 (RAJ)

Rohitash Singh v. Kishan

2003-05-01

S.C.SINGHAL

body2003
SINGHAL, Member – Applicant-defendants have filed this revision under Section 223 of the Rajasthan Tenancy Act, 1955, (in short ``the Act) against the order dated 9.12.2002 passed by Settlement Officer-cum-Revenue Appellate Authority, Alwar, by which their appeal under Section 225 of the Act has been dismissed. (2). Undisputedly, the non-applicants filed a revenue suit before Asstt. Collector, Tijara under Sections 88, 89 and 188 of the Act along with an application under section 212 of the said Act for injunction. It is not disputed that the Asstt. Collector granted ad-interim temporary injunction with a direction to issue notices to the applicant-defendants to put forth their claim for final decision of the aforesaid application of temporary injunction under Section 212 of the Act. (3). It is amazing to note that the applicants instead of appearing before Asstt. Collector and filing objections opposing temporary injunction granted by Asstt. Collector, filed an appeal before Settlement Officer-cum-Revenue Appellate Authority, Alwar. The Settlement Officer-cum-Revenue Appellate Authority, Alwar decided the appeal on merits as aforesaid, now this revision. (4). It is amazing to note that when the appeal came up for final hearing before Settlement Officer-cum-Revenue Appellate Authority, Alwar ex-parte interim injunction order granted by Asstt. Collector vide his order dated 19.11.98 has already come to an end and has outlived its utility, thus order passed by Asstt. Collector on 19.11.98 was not in existence on 9.12.2002 when the appeal was taken up for hearing by Settlement Officer- cum-Revenue Appellate Authority, Alwar and as such question of deciding the appeal on merits does not arise. In such a situation, the Settlement Officer-cum-Revenue Appellate Authority, Alwar ought to have dismissed the appeal having become infructuous instead of passing fresh final order on merits on the application moved under Section 212 of the Act, depriving the parties to got their respective claims finally decided on merits at first instant by Asstt. Collector, Tijara under the aforesaid section. (5). It has been contended by the learned counsel of the applicants that the appeal lies against ad-interim temporary injunction order granted by Asstt. Collector to the Revenue Appellate Authority, as such it was within the jurisdiction of Revenue Appellate Authority to decide the appeal on merits. (6). Assuming for the sake of arguments that even against ex-parte temporary injunction passed by Asstt. Collector to the Revenue Appellate Authority, as such it was within the jurisdiction of Revenue Appellate Authority to decide the appeal on merits. (6). Assuming for the sake of arguments that even against ex-parte temporary injunction passed by Asstt. Collector in exercise of its discretion under Section 212 of the Act, an appeal was maintainable before the Revenue Appellate Authority, even then since ex-parte temporary injunction order dated 19.11.98 passed by Asstt. Collector was not in existence and has already outlived its utility, when the appeal came up for hearing before the Revenue Appellate Authority on 9.12.2002, then he ought to have remanded the case to the Asstt. Collector to decide the application under Section 212 of the Act on merits instead of deciding it himself finally on merits, depriving the parties to have a final decision on merits at first instant by Asstt. Collector within the meaning of aforesaid section. In this connection, reference may be made to Babu Lal Ors. vs. Board of Revenue and Ors. (1). (7). As result of aforesaid discussions, the instant revision is hereby allowed and the order dated 9.12.2002 passed by Settlement Officer-cum-Revenue Appellate Authority, Alwar is set-aside and the case is remitted back to Asstt. Collector, Tijara with a direction to decide the application moved under Section 212 of the Act finally on merits in accordance with law after giving full fledged opportunity of hearing to both the parties which including to allow both the parties to adduce their evidence in support of their respective claims. (8). This revision is disposed of as indicated above at the stage of admission. (9). Pronounced in the open court.