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Rajasthan High Court · body

2010 DIGILAW 1279 (RAJ)

Ramchandra v. Lala

2010-07-23

G.K.TIWARI

body2010
TIWARI, M.—This is a revision petition under Section 230 of the Rajasthan Tenancy Act 1955 (in short `the Act') against the impugned judgment dated 9.7.2002 of Revenue Appellate Authority Kota. 2. Briefly stated, the facts of case are that the non-petitioner No. 1 had filed a suit under Section 183 of the Act in the court of Assistant Collector (Headquarter) Bundi. The suit was dismissed in default due to `no instruction' pleaded by the counsel for the plaintiff (non-petitioner No.1 herein). Thereafter an application was filed by the plaintiff for restoration of the suit under Order 9 Rule 9 of the Civil Procedure Code. This application was rejected by Assistant Collector by his order dated 30.7.01 which was challenged in appeal by the plaintiff-appellant in the court of Revenue Appellate Authority Kota who allowed the appeal and set aside the order dated 30.7.01 of Assistant Collector by his impugned judgment dated 9.7.02, aggrieved against which this revision petition is filed. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioner has contended that a suit was dismissed in default on no instruction by the counsel for the plaintiff. The plea taken by the plaintiff for restoration of the suit was that he was suffering from typhoid. But no evidence is produce to prove that he was seriously ill or suffering from typhoid. The plaintiff deliberately absented himself from the hearing. So there was nothing illegal in dismissing the suit in default as well as dismissing the application for restoration of the suit by the trial court. But Revenue Appellate Authority has committed illegality in setting aside the impugned order of the trial Court. The impugned judgment of Revenue Appellate Authority is non-speaking and does not show exercise of judicial mind. The reason given by Revenue Appellate Authority for allowing the appeal is that the appellant is from a community of scheduled caste, but so is the petitioner-defendant. So the impugned order of Revenue Appellate Authority should be set aside and the order of the trial court should be upheld. 5. Opposing the contentions of the petitioner, the counsel for the non-petitioner pleaded that a suit cannot be dismissed due to pleading of `no instruction' by the advocate. So the impugned order of Revenue Appellate Authority should be set aside and the order of the trial court should be upheld. 5. Opposing the contentions of the petitioner, the counsel for the non-petitioner pleaded that a suit cannot be dismissed due to pleading of `no instruction' by the advocate. On pleading such `no instruction' it is the duty of the court to give notice to the plaintiff but no such notice or information was given either by the court or by the advocate to the plaintiff. Therefore, the plaintiff-non-petitioner cannot be penalised for the fault of the advocate. The learned counsel cited 2007 AIR (SC) 1889, 2008 DNJ (Raj.) 498, 1998(1) DNJ (Raj.) 335, 2008 RRD 283 = RLW 2008(1) RJ 604 and 2003 RRT 1013 in support of his contention. A suit for dispossession of a trespasser on the khatedari land should be decided on merit rather than on technical ground. The scope of revision is limited. Revenue Appellate Authority has simply remanded the case for re-trial giving opportunity of hearing to both the parties. So there is no illegality in the impugned judgment of Revenue Appellate Authority. 6. I have given thoughtful consideration to the rival contentions, perused the impugned judgment and gone through the material on record. 7. Assistant Collector Bundi dismissed the suit due to `no instruction' pleaded by the counsel for the plaintiff by his order dated 20.12.1996. The application for the restoration of the suit was also dismissed by Assistant Collector by his order dated 30.7.01 mainly on the ground that no evidence was produced by the plaintiff that he was ill or suffering from typhoid. Revenue Appellate Authority has set aside the order dated 30.7.01 of the trial Court and remanded the case for hearing and decision on merits giving opportunity of hearing to both the parties. 8. According to Order 3 Rule 4(2) of the Civil Procedure Code a pleader can withdraw his power to plead only with the leave of the court; but in this case no such leave for withdrawal is granted by the trial Court to the advocate. Hon'ble Rajasthan High Court in 1998 DNJ (Raj.) 335 has held that leave of the court should be taken before withdrawing the case and a notice should also be given to the client about it. But in the case under consideration no such action was taken. Hon'ble Rajasthan High Court in 1998 DNJ (Raj.) 335 has held that leave of the court should be taken before withdrawing the case and a notice should also be given to the client about it. But in the case under consideration no such action was taken. In such a situation, the application for the restoration of the suit should have been allowed and the suit should have been restored. But the trial court refused to do so mainly on the ground that the plaintiff had not produced any documentary evidence that he suffered from typhoid or any illness. Firstly, it is not required in view of the non-compliance of the mandatory provisions of Order 3 Rule 4(2) of the Civil Procedure Code, secondly plaintiff has submitted an affidavit in support of contentions of the application filed for the restoration of the suit. No counter affidavit is produced rebutting the averments made in the affidavit. Therefore, the trial Court should have relied on the contents of the affidavit which were neither controverted nor rebutted by any counter affidavit. Looking to all these facts and legal position, Revenue Appellate Authority has not committed any illegality in setting aside the impugned order of trial Court and directing the Assistant Collector to decide the suit on merit affording opportunity of hearing to the rival parties. A suit under section 183 of the Act praying for ejectment of a trespasser from a khatedari land should be tried fairly and decided on merits. Thus, I do not find any infirmity or illegality in the impugned judgment of Revenue Appellate Authority who has neither exceeded his jurisdiction nor committed material irregularity nor illegality in passing the judgment dated 9.7.02. Thus, the revision fails. 9. In the result, the revision is dismissed. Pronounced.