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2006 DIGILAW 2130 (RAJ)

Ramjeet v. Board of Revenue

2006-07-05

PREM SHANKAR ASOPA

body2006
Honble ASOPA, J.—The petitioners have filed the present writ petition against the order of the Board of Revenue, Ajmer dated 16.11.1993, whereby the order of Revenue Appellate Authority, Alwar dated 8.7.1988 for remanding the case to the ACM, Bayana, District Bharatpur has been set-aside on the ground that scope of appeal and the application under Order 9 Rule 13, C.P.C. is different, the Revenue Appellate Authority, being an appellate authority, could have decided the appeal on merits, but could not have seen the sufficiency of service of summons even for the purpose of deciding the issue of limitation, which is the scope of application under Order 9 Rule 13, C.P.C. therefore, the said appellate authority has committed an error in treating the appeal as within time, from the date of knowledge on account of improper service, which is in fact barred by time. 2. Briefly stated the relevant facts of the case are that respondent Nos. 4 and 5 have filed a revenue suit against the petitioners and seven others under Sections 88, 89 and 188 of the Rajasthan Tenancy Act, 1955 before the Assistant Collector, Bayana for declaration and correction of entries stating therein that they are Khatedar of the part land of Khasra No. 9, measuring 52 bighas and 4 biswas, situated at village Gharsoni, Tehsil weir after excluding the remaining part of the land, which was in possession of Ramdayal, Heera Lal, Mitharaj Singh, Gordhan and Mewaram (Defendant Nos. 5 to 9 of the suit), but the said land has wrongly been entered in the name of Gangaram, Ramjeet, Mahendra and Ranji @ Ramjeet (Defendant Nos. 1 to 4 of the suit). Therefore, the said entry be corrected and be made in the name of plaintiffs Ramesh Chand and Samander Singh (Respondent Nos. 4 and 5). The further case of the petitioners is that the revenue suit was exparte decreed on 19.7.1984 without ensuring the fact whether the service upon the defendants including the petitioners has been made or not. 3. The petitioners who were the defendants, have filed an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte order of the ACM, Bayana, dated 19.7.1984 and simultaneously filed an appeal before the Revenue Appellate Authority, Alwar against the said ex parte order dated 1 9.7.1984 alongwith an application under Section 5 of the Limitation Act. 3. The petitioners who were the defendants, have filed an application under Order 9 Rule 13 C.P.C. for setting aside the ex parte order of the ACM, Bayana, dated 19.7.1984 and simultaneously filed an appeal before the Revenue Appellate Authority, Alwar against the said ex parte order dated 1 9.7.1984 alongwith an application under Section 5 of the Limitation Act. One of the main ground in both the applications was that the ACM, Bayana has committed an error of law in passing ex parte order without ensuring sufficiency of service. The Revenue Appellate Authority called for record of the ACM, Bayana and thereafter an application was moved by the respondents of the writ petition that the application under Order 9 Rule 13, C.P.C. is required to be decided first by the trial Court before hearing of the appeal. The said application was rejected by the Revenue Appellate Authority on the ground that the appellate Court is quite competent to decide the appeal. In appeal, the Revenue Appellate Authority Alwar vide its judgment dated 8.7.1988 came to the conclusion that summons have not been served as per Order 5 Rule 2, 15 and 19, C.P.C. and service of summons on two dead persons by affixation is now a matter of enquiry whether they were alive or not on that day and a finding was also recorded by the Revenue Appellate Authority that the issue of limitation has not been raised by the respondents but in the application under Section 5 of the Limitation Act, it has been mentioned that the appellants came to know about the ex parte order dated 19.7.1984 on 8.4.1985 from the report of Halka Patwari and after obtaining the copies of the record, appeal was filed on 29.4.1985, hence the same is within time. The appeal was held to be within limitation therefore, no order was passed for condonation to delay. Ultimately, the matter was remanded back, to Assistant Collector, Bayana for further action according to law from the stage of filing of the written statement. As regards death of two defendants, it was directed that summons be served upon their legal representatives and State Bank of India, Bharatpur Branch be also made a party to the proceedings. 4. Ultimately, the matter was remanded back, to Assistant Collector, Bayana for further action according to law from the stage of filing of the written statement. As regards death of two defendants, it was directed that summons be served upon their legal representatives and State Bank of India, Bharatpur Branch be also made a party to the proceedings. 4. Against the said judgment of the Revenue Appellate Authority dated 8.7.1988, the respondent-plaintiffs Filed an appeal before the Board of Revenue, Ajmer and the Board of Revenue vide its judgment dated 16.11.1993, accepted the said appeal on the ground that the scope of Order 9 Rule 13, C.P.C. and appeal is different and sufficiency of service of summons could not have been considered in appeal which is the scope of application under Order 9 Rule 13, C.P.C. and held that the appeal before the Revenue Appellate Authority was barred by time, and therefore, the judgment of the Revenue Appellate Authority was set-aside but no order with regard to application under Section 5 of the Limitation Act, filed before the Revenue Appellate Authority, was passed. 5. The respondents have not filed any reply, however, they have supported the judgment of the Board of Revenue dated 16.11..1993. 6. The submission of the counsel for the petitioners is that as per the judgment of the Division Bench of this Court in Chanda (Smt.) & Ors. vs. State of Rajasthan & Ors. reported in Civ. Times (Raj.) 2003 (2) 993, three remedies are available in case of ex parte decree viz. (i) filing of application under Order 9 Rule 13, C.P.C., (ii) filing of review petition under Order 47 Rule 1 C.P.C. and (iii) filing of the appeal under Section 96(2), C.P.C. and there is no bar for availing of the same simultaneously. The appellate Court can also consider the issue of non/improper service of the summons. He further submits that the Revenue Appellate Authority has not committed any error in holding the appeal within time while considering the fact of knowledge of ex parte decree, as starting point of limitation, as mentioned in the application under Section 5 of the Limitation Act. Since, the appeal was held within time, there was no requirement of law to pass the order on the application under Section 5., of the Limitation Act for condonation of delay. Since, the appeal was held within time, there was no requirement of law to pass the order on the application under Section 5., of the Limitation Act for condonation of delay. In the aforesaid circumstances, counsel for the petitioners further contended that for the limited purpose whether the appeal is within time or not, the fact of knowledge of ex parte decree can be considered. 7. The submission of the counsel for the respondents is that the Revenue Board has rightly held that the sufficiency of service cannot be looked into a regular appeal against the ex parte order. The counsel for the respondents relied on a judgment in the case of Bhanu Kumar Jain vs. Archana Kumar & Anr., 2005(1) SCC 787 , wherein, in Para Nos. 37 and 38, it was held that the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial court and/or existence of a sufficient cause for non-appearance of the defendants before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the material brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. 8. The further submission of the counsel for the petitioners is that the Supreme Court in the aforesaid case of Bhanu Kumar Jain vs. Archana Kumar & Anr. (supra), in Para No. 26, has also considered the fact of availing of both the remedies simultaneously and held that remedy of Order 9 Rule 13 for setting aside the ex parte order as well as appeal can be availed simultaneously but in the event the appeal is dismissed as result whereof the ex parte decree passed by the trial Court merges with the order passed by the appellate Court, then having regard to explanation appended to Order 9 Rule 13, of the Code, a petition under Order 9 Rule 13 would not be maintainable. However, as per Explanation I appended to the said provision does not suggest that the converse is also true. 9. However, as per Explanation I appended to the said provision does not suggest that the converse is also true. 9. I have gone through the record of the writ petition and further considered the rival submissions made by, the parties. 10. Before proceeding further, it would be relevant to quote Section 96(2) and Order IX Rule 13, C.P.C. which are as under: - "96. Appeal from original decree. (1) ................ (2) An appeal may lie from an original decree passed ex parte. Order IX Rule 13. Setting aside decree ex parte against defendants.—In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from. appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be, set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree. 11. Under Section 223(ii) of the Rajasthan Tenancy Act, 1955 (for short the Act of 1955), appeal from original decree of the Assistant Collector lies to the Revenue Appellate Authority, although the word "ex parte", as mentioned in Section 96(2), C.P.C. is not there in Section 223(ii) but the same term "decree" includes "ex parte decree" also, therefore, law on the subject will not change. 12. 12. As regards availability of simultaneous remedies and considerations of the summons whether the same have been properly served or not, the said issue can be examined by the Appellate Court, as held by the Division Bench of this Court in. the case of Chanda (Smt.) & Ors. vs. State of Rajasthan & Ors. (supra), Para No. 5 a rid relevant portion of Para No. 6 of the aforesaid judgment are as follows:- "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 is passed has three options: (i) he may file application seeking setting aside the ex parte decree under Order 9 Rule 13 Code of Civil Procedure; 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....... 13. The Supreme Court has also taken the same view on the issue of availing the remedies simultaneously in Para No. 26 of the aforesaid judgment of Bhanu Kumar Jain vs. Archana Kumar & Anr. (supra), but in Para No. 38 of the aforesaid judgment, confined power of appellate Court to decide the appeal on merit. The relevant Para Nos. 26, 37 and 38 of the aforesaid judgment are as follows: - "26. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. When an ex parte decree is passed, the defendant (apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial Court merges with the order passed by the appellate Court, having regard to explanation appended to Order 1) Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation 1 appended to the said provision does not suggest that the converse is also true." 37. We have, however, no doubt in our mind that when an application under Order 9 Rule 13 of the Code is dismissed, the defendant can only avail a remedy available there against viz. to prefer an appeal in terms of Order 43 Rule 1 of the Code. Once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal. If it be held that such a contention can be raised both in the first appeal as also in the proceeding arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law. 38. The dichotomy in our opinion, can be resolved by holding that whereas the defendant would not be permitted to raise a contention as regards the correctness or otherwise of the order posting the suit for ex parte hearing by the trial Court and/or existence of a sufficient cause for non-appearance of the defendants before it, it would be open to him to argue in the first appeal filed by him under Section 96(2) of the Code on the merits of the suit so as to enable him to contend that the material brought on record by the plaintiffs were not sufficient for passing a decree in his favour or the suit was otherwise not maintainable. Lack of jurisdiction of the Court can also be a possible plea in such an appeal. We, however, agree with Mr. Lack of jurisdiction of the Court can also be a possible plea in such an appeal. We, however, agree with Mr. Chaudhari that the "Explanation" appended to Order 9 Rule 13 of the Code shall receive a strict construction as was held by this Court in Rani Choudhury, 1982(2) SCC 596 , P. Kiran Kumar, 2002 (5) SCC 161 and Shyam Sunder Sharma vs. Pannalal Jaisawal, 2005 (1) SCC 426." 14. The Division Bench of this Court delivered the judgment in the case of Chanda (Smt.) & ors. State of Rajasthan & Ors. (supra) on 23.7.2003 and subsequently the Supreme Court delivered the judgment in the case of Bhanu Kumar Jain vs. Archana Kumar & Anr. (supra), on 17.12.2004, whereby the aforesaid controversy has been set at rest and it was held that there is no legal bar to avail both the remedies simultaneously, but while deciding the appeal, the appellate Court cannot look into sufficient cause for non-appearance, which will include. sufficiency of service also. The Supreme Court has further held in Para Nos. 37 and 38 of the said judgment that in case an application under Order 9 Rule 13 C.P.C. is dismissed, then the said Order is appealable under Order 43 Rule 1 of the Code and once such an appeal is dismissed, the appellant cannot raise the same contention in the first appeal and further if it be held that such a contention can be raised both in the first appeal as also in the proceedings arising from an application under Order 9 Rule 13, it may lead to conflict of decisions which is not contemplated in law. Therefore, in Para No. 38 of the said judgment of the Supreme Court, it was held that sufficient cause for non-appearance of the defendant is not to be considered in first appeal filed by him under Section 96(2) C.P.C. This judgment of the Supreme Court will hold the field. 15. Before the Revenue Appellate Authority, not only the question of sufficiency of service on the respondents-appellants (defendants) and whether two dead persons were alive or not on the date of service by affixation were involved, but the issue whether the appeal was barred by time was also involved. The relevant portion of the typed copy of the judgment of the Revenue Appellate Authority, dated 8.7.1988 (Annexure-8), at Pages 11 and 12, is as follows: - "......... The relevant portion of the typed copy of the judgment of the Revenue Appellate Authority, dated 8.7.1988 (Annexure-8), at Pages 11 and 12, is as follows: - "......... As far the service of summons on the two dead persons, it is now a matter of enquiry whether they were alive on the day of the suit and on the day when summons were alleged to have been pasted on their houses. There is no record to show also that the summons could not be served on any adult member of the families of the defendants....." 16. On the issue of limitation, the relevant portion of the typed copy of the judgment of the Revenue Appellate Authority, dated 8.7.1988 (Annexure-8), at page 14, is as follows: - "....... No point as to limitation was raised by the respondent. Application under Section 5 of the Limitation Act states the ex parte decree was passed on 19.7.1984 against the appellants. The Halka Patwari informed the appellants about the decree on 8.4.1985 and after obtaining copies of the record, appeal was filed on 29.4.1985. This is within time, and is accepted." 17. The operative portion of the typed copy of the judgment of the Revenue Appellate Authority, dated 8.7.1988 (Annexure-8), at Page 15 is as follows: - "........ On the basis of the above analysis, the judgment and decree dated 19.7.1984 given by the Asstt. Collector Bayana are set aside, appeal accepted and the case is remanded back to him for further action according to law from the stage of filing written statement. As for the death of two defendants, their legal representative will be served summons etc. The Asstt. Collector Bayana will not decide the case, after making the State Bank of India, Bharatpur Branch a party, according to law. Parties will bear their own cost. Decree be issued accordingly. Parties may appear before ACM on 1.9.1988........ 18. Now the question arises whether in the application under Section 5 of the Limitation Act, the fact of date of knowledge of ex parte decree can be considered on the basis of other facts mentioned in the above condonation application? The Supreme Court in the aforementioned case of Bhanu Kumar Jain vs. Archana Kumar & Anr., (supra), has held that appeal can be decided on merits against ex parte decree. The Supreme Court in the aforementioned case of Bhanu Kumar Jain vs. Archana Kumar & Anr., (supra), has held that appeal can be decided on merits against ex parte decree. In case, appeal against the ex parte decree, i4, filed after expiry of limitation alongwith the application under Section 5 of the Limitation Act, then. unless the appeal is held to be within limitation, from the date of knowledge on the basis of facts mentioned in the application under Section 5 of the Limitation Act or delay is condoned after finding out the sufficient cause for not filing the same within time, the appeal could not be decide on merit. Therefore, in my view, for the limited purpose of finding out the sufficient cause for not filing the appeal in time, the said fact can be considered and thereafter the appeal against the ex parte decree can be decided on merits, but no final order of remand can be passed only on the basis of sufficiency of service of summons. Here in the instant case, not only the question of sufficiency of service was involved but the ex parte proceedings have been held against two dead persons, who were said to be dead on the date of service by affixation. 19. I am of the view that the finding of the Revenue Appellate Authority with regard to sufficiency of service on the present appellants, is without jurisdiction, which is the scope of application under Order 9 Rule 13, C.P.C. The aforesaid finding of the Board of Revenue is upheld. 20. I am of the further view that the Board of Revenue has committed an error of law in not considering properly that the appeal was within time from the date of knowledge and ignored the fact that even if sufficient cause was not there to treat the appeal within time, whether other sufficient cause is available for condonation of delay or not. The remaining part of the judgment of the Board of Revenue of holding the appeal before the Revenue Appellate Authority, as barred by time and dismissing the same, is set-aside. 21. The remaining part of the judgment of the Board of Revenue of holding the appeal before the Revenue Appellate Authority, as barred by time and dismissing the same, is set-aside. 21. Accordingly the judgment of the Board of Revenue, Rajasthan, Ajmer, dated 16.11.1993 is modified as under: - (i) The finding of the Board of Revenue, so far as it relates to sufficiency of service could not have been looked into by the Revenue Appellate Authority while disposing of the appeal, is upheld. (ii) The remaining part of the judgment of the Board of Revenue, so far as it relates to dismissal of the appeal filed before the Revenue Appellate Authority, as barred by time, is set-aside and the appeal is held to be filed within time. (iii) The matter is remanded back to the Revenue Appellate Authority, Alwar to decide the first appeal on merit. (iv) The application under Order 9 Rule 13, C.P.C, stand revived.