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2006 DIGILAW 14 (JK)

Anil Kumar v. Mohd. Shafi Hajam

2006-02-24

PERMOD KOHLI

body2006
1. This is an application seeking setting aside of ex-parte order dated 24th September, 2004 passed by this court in SWP No. 1780/2000 whereby writ petition filed by respondent no.1 herein was allowed and the appointment of the applicant was quashed. It is stated in the application for setting aside that the applicant is resident of village Barshalla, and he never received any notice from the post-office either at his residence or in the school where he was serving at the relevant time; consequent upon his appointment as Rehbar-e-Taleem Teacher in the Primary School at Juddi. 2. On this application being considered, record of the writ court was summoned. From inter-locutory orders passed from time to time, it appears that on 24th September, 2004 applicant who was respondent No.5 in the original writ petition was set ex-parte on the basis of deemed service of notice through registered post. The registry had noticed that the summon issued to respondent No.5 under registered cover on 12th August, 04 has not been received back served or unserved nor anybody appeared on his behalf "even after the expiry of 30 days." That on the basis of this report, the applicant was set ex-parte and court proceeded to decide the writ petition on the basis of the pleadings of the appearing parties and passed the final judgment dated 3rd November, 2004. Admittedly, the applicants appointment has been quashed and a direction was issued to consider the petitioner for appointment provided, he is not disqualified in any manner and is eligible in accordance with the Scheme. 3. From the original record of the writ petition, it also appears that a registered notice was sent to applicant Anil Kumar, shown to be the resident of village Barshalla, Tehsil and District Doda, P.O Thatri. Neither the registered envelop nor the acknowledgement due were received back. 4. Objections have been preferred against this application. Mr. M.P Gupta appearing for the contesting respondents, who was writ petitioner before the writ court has raised a preliminary objection regarding the maintainability of this application. According to him, High Court rules do not envisage setting aside of the ex-parte order or a judgment passed by a writ court. Reference is made to Rule 15(2) which provides service of notice through registered post with acknowledgement due. 5. I have examined the writ proceedings rules, 1997. According to him, High Court rules do not envisage setting aside of the ex-parte order or a judgment passed by a writ court. Reference is made to Rule 15(2) which provides service of notice through registered post with acknowledgement due. 5. I have examined the writ proceedings rules, 1997. There is no specific rule which envisage initiating ex-parte proceedings against the non-appearing respondents nor does it provide for setting aside of the ex-parte proceedings in the event any such proceedings are initiated against the respondents. Rule 18 deals with the passing of the ex-parte order in an interim application where rule-nisi is issued. Mr. Gupta, Learned. Advocate has accordingly submitted that the rules envisage setting aside of proceedings only in respect to interim application and not in the main writ petition wherever ex-parte proceedings are initiated. 6. Apart from above, it is vehemently argued that the applicant has not disputed correctness of his address given in the writ petition and thus it presumed that he has the knowledge of the proceedings and he deliberately remained away from the judicial proceedings resulting in passing of the judgment by this court. According to him, this court cannot interfere in the final judgment which has been passed on merits of the controversy between the parties. 7. I have heard learned counsel for the parties. Admittedly, the applicant has not disputed the correctness of the address given in the writ petition. However, his specific averments made in the application that he never received any registered envelop or notice through registered post nor was served with the copy of the writ petition. He further stated that during the relevant period, he was serving in the School. Post-man never approached him for service of any such notice in the writ petition. The application is duly supported with an affidavit and his allegations in the application are also required to be examined in the light of the record of the writ petition. There is only one postal receipt and no other document. The court while proceeding ex-parte against the applicant relied upon the endorsement of the registry to the effect that the registered notice sent to the applicant herein was not received in the registry back served/unserved. It was on the basis of this endorsement that the court proceeded ex-parte against the applicant on the basis of deemed or in other words presumed service. It was on the basis of this endorsement that the court proceeded ex-parte against the applicant on the basis of deemed or in other words presumed service. Specific allegations made in the application have not been rebutted in their objections as a matter of fact could not have been rebutted. What has been stated is that the applicant deliberately remained away. It is unimaginable that a person whose service is at stake would remain away form the court and permit the court to pass an adverse order against him. Mr. Gupta, has further stated that the applicant was duly served. Whenever there is a legal presumption in law, it is considered to be due service, but it is settled preposition of law that every presumption be it under a statute or otherwise is rebutable in law. From the averments made in the application, I am satisfied that the applicant has been able to rebut the presumption of due service. 8. As for the contention of learned counsel for respondents that the court has no jurisdiction to set aside the ex-parte proceedings in absence of their being any specific provision, suffice it to say that any court or authority having the power to pass an order necessarily has the power to alter or modify the same. Such a power is inherent in the rescind, authority who can proceed against a person. Irrespective of the fact whether there is any specific rule allowing setting aside of the ex-parte order, this court if, has the power to proceed ex-parte it necessarily has the power to set aside the ex-parte proceedings. This application is accordingly allowed. Order dated 24th September, 2004 is recalled subject to payment of Rs. 2000/- as costs to be deposited in the Advocates Welfare Fund within two weeks. As a consequence of setting aside of the ex-parte proceedings writ petition SWP No. 1786/2000 shall stand revived and be listed for consideration. 9. Mr. Gupta, learned counsel appearing for respondent No.1 who was the writ petitioner before the writ court submits that as a consequence of quashment of the appointment of applicant his client (writ petitioner) stands appointed as a R.E.T Teacher in place of the applicant and is working since May, 2005. 9. Mr. Gupta, learned counsel appearing for respondent No.1 who was the writ petitioner before the writ court submits that as a consequence of quashment of the appointment of applicant his client (writ petitioner) stands appointed as a R.E.T Teacher in place of the applicant and is working since May, 2005. Though the Order dated 24th September, 2004 has been set aside and the writ petition revived, its revival will not effect the appointment of the respondent No.1 till the writ petition is finally disposed of. The final disposal of the writ petition will decide the fate of respondent No.1.