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2008 DIGILAW 380 (RAJ)

Lal Chandra v. Board of Revenue

2008-02-07

PREM SHANKER ASOPA

body2008
JUDGMENT 1. - By this writ petition, the petitioners, who are illiterate persons, have challenged the order dated 7.1.1985 passed by the SDO Laxmangarh, order dated 7.1.1985 passed by the Revenue Appellate Authority, Alwar and order dated 6.3.1990 passed by the Board of Revenue. 2. The main grievance of the petitioners before this Court is that the Revenue Appellate Authority has dismissed their appeal on the ground that along with the application for condonation of delay unattested affidavit had been filed against when the petitioners filed revision petition before the Board of Revenue and the same was dismissed on 6.3.1990 on the ground that as per Rule 33 of the Rajasthan Revenue Court Manual Part-II an affidavit is to 1 be filed along with the application. 3. Submission of Mr. K.K. Mehrish is that the Supreme Court in various pronouncements has said that the word 'shall' is to be beneficially construed as sometimes compliance of the said part of the statute is directory. He further submits that in case of the application for condonation of delay if no 1 affidavit Is filed then the same Is to be treated as defective and the Court very well can ask the applicant to file another affidavit. In the Instant case, the affidavit was filed but the same was unattested, therefore, it could have been returned for attestation but there was no reason to dismiss the appeal as well as the revision petition by the Revenue Appellate Authority and the Board of Revenue respectively on the said technical ground. It appears that the petitioners were not called upon by the Dealing Clerk to remove the defect in the affidavit and the said objection has been urged by the respondents at the time of hearing of the case. Counsel placed reliance on paras 11 and 12 of the judgment in State of M.P. and another v. Pradeep Kumar and another, reported in (2000) 7 SCC 372 . 4. Dr. Khangarot, Addl. GA contends that the petitioners should have been more vigilant at the time of filing of the memo of appeal along with application for condonation of delay and even if the same is not filed then the petitioners ought to have sought time for filing the same but the requirement of the rule is to be complied with. 5. GA contends that the petitioners should have been more vigilant at the time of filing of the memo of appeal along with application for condonation of delay and even if the same is not filed then the petitioners ought to have sought time for filing the same but the requirement of the rule is to be complied with. 5. I have gone through contents of the writ petition and further considered the submissions made by the counsel for the parties. 6. Relevant Rule 33 of the Rajashtan Revenue Courts Manual-11 reads as follows : "33. Affidavits to accompany certain applications. The following applications shall be accompanied by an affidavit setting out in the form of a narrative the material facts and the circumstances including names and dates where necessary on which the applicant relies, namely : 1. An application for review made on ground of discovery of new and important matter or evidence or any other sufficient reason, 2. An application for stay of execution proceedings, 3. An application for vacating of an order for stay, 4. An application for the attachment before judgment or an injunction, 5. An application for appointment or discharge of a receiver, 6. An application for the re-admission or restoration of an appeal or application dismissed in default of appearance or for the setting aside an ex pane order or decree, 7. An application for substitution of parties or for a note to be made in the record when the legal representative of the party is on the record or when a party has died without leaving any legal representatives, 8. An application for transfer of a case, 9. Applications for appointment of a guardian ad litem next friend, 10. Application by way of complaint against a legal practitioner or Revenue Agent, 11. Application under Section 5 of he Limitation Act, (emphasis supplied) 12. Any other application stating all facts on the basis of which an order is sought or any other application which is required by any rules or law to be supported by an affidavit. The court may call for an affidavit in any other matter coming before it or him." 7. Paras 11 and 12 of the Supreme Court judgment in State of MP and another v. Pradeep Kumar and another (supra) read as under : "11. No doubt sub-rule (1) of Rule 3-A has used the word 'shall'. The court may call for an affidavit in any other matter coming before it or him." 7. Paras 11 and 12 of the Supreme Court judgment in State of MP and another v. Pradeep Kumar and another (supra) read as under : "11. No doubt sub-rule (1) of Rule 3-A has used the word 'shall'. It was contended that employment of the word 'shall' would clearly indicate that the requirement Is peremptory in tone. But such peremptoriness does not foreclose a chance for the appellant to rectify the mistake, either on his own or being pointed out by the court. The word 'shall' in the context need be interpreted as an obligation cast on the appellant. Why should a more restrictive interpretation be placed on the sub-rule? The Rule cannot be interpreted very harshly and make the non-compliance punitive to an appellant. It can happen that due to some mistake or lapse an appellant may omit to file the application (explaining the delay) along with the appeal. (emphasis supplied) 12. It is true that the pristine maxim vigilantibus non dormentibus jura subyeniunt (law assists those who are vigilant and not those who sleep over their rights). But even a vigilant litigant is prone to commit mistakes. As the aphorism 'to err is human' is more a practical notion. of human behaviour than an obstract philosophy, the unintentional lapse on the part of a litigant should not normally cause the doors of the judicature permanently closed before him. The effort of the court should be one of finding means to pull down the shutters of ark judicatory jurisdiction before a party who seeks justice, on account of any mistake committed by him, but to see whether it is possible to entertain his grievance if it is genuine." (emphasis supplied) 8. In my view, where the word 'shall' appears in the beneficial statute, then it is to be construed as directory otherwise un-intentional lapse of a litigant will result in closing the doors of the Court permanently. The petitioners are poor illiterate persons and no such defect was pointed out by the Dealing Clerk before the hearing of the case. I am of the further view that there was no such lapse for which the well as the revision petition. The petitioners are poor illiterate persons and no such defect was pointed out by the Dealing Clerk before the hearing of the case. I am of the further view that there was no such lapse for which the well as the revision petition. It was a case where the defect was curable and could have been cured by allowing an opportunity to the party to remove Vie same. The Courts are respected for doing justice on merit and not on account of dismissing the appeal/revision/review on technical ground which would result in penalising the litigants for procedural irregularity. Both the Revenue Appellate Authority and the Board of Revenue committed error in dismissing the appeal and the revision petition and, therefore, both the judgments are liable to be set aside. 9. Accordingly, the writ petition is allowed, the impugned order of the Revenue Appellate Authority dated 7.1.1985 as also the order dated 6.3.1990 of the Board of Revenue are set aside and the matter is remanded back to the Revenue Appellate Authority, Alwar for disposal of the appeal on merits within a period of six months.Writ Petition allowed. *******