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2009 DIGILAW 661 (JK)

Shankutla Devi v. Madan Lal

2009-12-18

A.K.Shan

body2009
1. In this revision petition order dated 19.4.2003 passed by Additional Deputy Commissioner with powers of Commissioner Agrarian Reforms, Rajouri has been sought to be set aside on the grounds mentioned in the petition. 2. Facts of the case as discernible from record are land under Khasra number 148, 150 and 291 situated in village Dodasan pain Tehsil Thanamandi, was in ownership right of Isher Dass and Ors. and cultivated by tenant Prithvi Raj and Madan Lal ss/o Jagat Ram. Prithvi Raj was not traceable after the communal riots took place in Rajouri on partition of the Country. So the land to the extent of his share was declared as evacuee land. At that time respondent Madan Lal was minor and was being looked after by his mother who married the father of the petitioners, Badri Nath. 3. According to the revision petition the land belonging to the respondent was cultivated by deceased Badri Nath. When Agrarian Reforms Act was enforced the mutations under Sections 4 and 8 of the said Act came to be attested in favour of Badri Nath, which were challenged by respondent before Joint Agrarian Reforms Commissioner Jammu who set aside the same by his order dated 25.4.1989 and remanded the case to Assistant Commissioner (with powers of Collector Agrarian Reforms) Rajouri. The order of remand was challenged by Badri Nath before this Tribunal by filing a revision petition which was dismissed on 5.3.1991. There after said Badri Nath filed a writ petition in the Hon'ble High Court against the order of this Tribunal which was too dismissed on 25.2.1993. 4. The Assistant Commissioner Rajouri on remand of the case again attested mutations under Sections 4 and 8 of the Agrarian Reforms Act in favour of Badri Nath which were challenged by respondent by filing an appeal before Joint Commissioner Agrarian Reform Jammu. Upon the application filed by respondent, Financial Commissioner with powers of Commissioner Agrarian Reforms J&K State, transferred the appeal to the court of Additional Deputy Commissioner (with powers of Commissioner Agrarian Reforms) Rajouri who allowed the appeal and set aside the mutations on 19.4.2003 attested in favour of Badri Nath. 5. The said order was assailed by Badri Nath by filing the present revision petition on variety of grounds, including the main ground that the court below has passed the order without hearing his counsel. 6. 5. The said order was assailed by Badri Nath by filing the present revision petition on variety of grounds, including the main ground that the court below has passed the order without hearing his counsel. 6. I have heard the learned counsel for the parties and examined the record. 7. During the pendency of this petition Badri Nath died where upon his surviving three daughters came to be arrayed as petitioners. 8. During arguments the learned counsel for the petitioners submitted that court below did not afford any opportunity of being heard to the counsel for the deceased Badri Nath and did not follow the procedure laid down by Order 41 of CPC. 9. According to him the appellate court relied upon the written arguments which were submitted before Joint Financial Commissioner from where the appeal was transferred to Additional Deputy Commissioner Rajouri where no request was made for considering the written arguments submitted before Joint Financial Commissioner. He further submitted that the appellate court did not pass any further order for pretty long time before passing a final order and even did not put the deceased appellant or his counsel to notice before announcing the order. 10. To the contrary the learned counsel for the respondent supported the impugned order and submitted that no illegality has been committed by the appellate court while considering the written arguments submitted by the counsel of the deceased Badri Nath before the Joint Financial Commissioner. 11. After looking to the nature of the arguments advanced by the learned counsel for the parties the question of law which arise for consideration is as to whether the appellate court has violated the provision contained in Rule 41 CPC and considered the written arguments submitted before the joint Financial Commissioner without the consent of the learned counsel appearing before him f or deceased Badri Nath. 12. To find out a solution to this important question of law the file of the appellate court is required to be examined minutely. 13. Before proceeding further, it is proper to note that when the appeal was pending before the Joint Commissioner Agrarian Jammu a transfer application came to be filed by Badri Nath before this Tribunal on 14.2.1994 where upon the case file was transferred to the court of Joint Financial Commissioner with powers of Commissioner Agrarian Reforms Jammu. 13. Before proceeding further, it is proper to note that when the appeal was pending before the Joint Commissioner Agrarian Jammu a transfer application came to be filed by Badri Nath before this Tribunal on 14.2.1994 where upon the case file was transferred to the court of Joint Financial Commissioner with powers of Commissioner Agrarian Reforms Jammu. After the receipt of file on 5.10.1994, the said Commissioner heard the learned counsel for the parties finally on 12.8.1996 and adjourned the case for orders on 11.9.1996 but failed to announce judgment till 14.12.1996 when by that time powers of Commissioner Agrarian Reforms were conferred upon Additional Deputy Commissioner, Rajouri. 14. In this background, the said Commissioner transferred the case file to Additional Deputy Commissioner Rajouri. In fact the parties had submitted written arguments before the Joint Financial Commissioner which were received by Additional Deputy Commissioner Rajouri. As per the file the Additional Deputy Commissioner decided to hear the learned counsel for the parties afresh and thus started adjourning the appeal to this effect from time to time from the year 1997 to 9.11.2007. 15. During this long period the counsel for the parties were not punctual in attending the appellate court. The respondent and his counsel were completely absent from 11.6.2003. On 9.11.2002 Badri Nath, his counsel and respondent before the appellate court was also absent and the case was adjourned for arguments on 9.12.2006 by the Peshi clerk of the appellate court because the presiding officer was out of headquarter. 16. After minutely examining the file of the appellate court, it is noticed that after 9.11.2002 the file was never taken up by the appellate court till 19.4.2003 when the impugned order was passed. 17. Although respondent and his counsel were absent till then, still the appellant court in the impugned order has recorded the fact of having heard the counsel for Badri Nath orally. In deciding the appeal the appellate court considered the written arguments filed by counsel of Badri Nath before Joint Financial Commissioner. 18. It is not disputed that Order 41 CPC is applicable to appeal under Agrarian Reforms Act. As per Rule 17(2) of said order where appellant appears and respondent does not appear the appeal shall be heared ex-parte. 19. In the present case as noticed, the respondent was not present before the appellant court since 11.6.2002 till the disposal of the appeal on 19.4.2003. As per Rule 17(2) of said order where appellant appears and respondent does not appear the appeal shall be heared ex-parte. 19. In the present case as noticed, the respondent was not present before the appellant court since 11.6.2002 till the disposal of the appeal on 19.4.2003. Accordingly the appellate court was required to decide the appeal in ex-parte. But to the contrary the appellate court when it wanted to hear the counsel for the deceased Badri Nath, without hearing him and placing respondent before him ex-parte, considered the written arguments which were submitted before Joint Financial Commissioner. If the appellate court had to adopt this course then upon transfer of the case from the Court of Joint Financial Commissioner in the year 1997, the appellate court should have not adjourned the case for argument for six year. No justification has been recorded in the impugned order, that why the written argument submitted on behalf of Badri Nath were not considered for a period of about 6 years. 20. As per law the appellate court should have placed respondent Badri Nath ex-parte and heard the appeal ex-party, without touching the written arguments submitted by his counsel. Even otherwise the impugned order does not disclose that the appellate court has discussed the written arguments filed on behalf of deceased Badri Nath. 21. The appellate court has also mentioned a wrong fact of having heard the learned counsel for Badri Nath when it is proved that he had never appeared before the appellate court from 11.6.2002 onwards. This really has resulted in passing of illegal judgment which is also and not in consonants to Rule 17(2) of Order 41 CPC. 22. Another infirmity in the impugned order is that after 9.11.2002 the file was not taken up for hearing by the appellate court and abruptly on 19.4.2003 the impugned order was passed. 23. It has not been pointed out by the appellate court where the file was till then. Presuming that for some unavoidable reasons the file was not taken up after 9.11.2002, the appellate court should have put Badri Nath to notice before deciding the appeal. Not adopting this course has also resulted in the mis-carriage of justice. 24. In nut shell the appellate court has passed the illegal order which is required to be set aside. Presuming that for some unavoidable reasons the file was not taken up after 9.11.2002, the appellate court should have put Badri Nath to notice before deciding the appeal. Not adopting this course has also resulted in the mis-carriage of justice. 24. In nut shell the appellate court has passed the illegal order which is required to be set aside. Had the appellate court adopted the procedure laid down in Rule 17(2) supra and passed an ex-parte judgment, it would have afforded an opportunity to respondent Badri Nath to apply under Rule 21 for re-hearing of the appeal. Thus the conduct of appellate court in not following the mandate of law has not only resulted in the mis-carriage of justice but caused prejudice to the father of the petitioner Badri Nath in defending his case. 25. The learned counsel for the appellant is right that appellate court has condemned the respondent unheard. 26. Accordingly this revision petitioner is allowed and the impugned order is set aside. The case is remanded back to appellate court for passing of fresh order after hearing the counsel for the parties. The learned counsel for the petitioners is directed to cause appearance of the petitioners before the appellate court on 20.1.2010. As respondent is not present in person or through their counsel so he shall be summoned by the appellate court. 27. Record of the court below be sent back along with copy of this order and file of this Tribunal be consigned to record after due compilation.