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2011 DIGILAW 1243 (RAJ)

Sharwan v. Tola

2011-06-29

G.K.TIWARI

body2011
Dr. TIWARI, M.—This revision petition under Section 230 of the Rajasthan Tenancy Act, 1955 (in short `the Act') is directed against the impugned order dated 11.3.1999 of Assistant Collector Bansur District Alwar. 2. Briefly stated, the facts of the case are that the petitioners-plaintiffs filed a suit in the court of Assistant Collector Bansur for declaration of khatedari rights and grant of permanent injunction in respect of the suit lands. Assistant Collector dismissed the suit under Order 17 Rule 3 of the Civil Procedure Code (C.P.C.) on the ground that the petitioners-plaintiffs have neither produced their oral evidence nor deposited the cost of Rs. 50/- imposed on them. Aggrieved against the impugned order dated 11.3.1999 of Assistant Collector, the petitioners have preferred the present revision petition in this court. 3. I have heard the learned counsels of both the parties. 4. The learned counsel for the petitioners contended that Assistant Collector, without understanding the provision of Order 17 Rule 3 of the C.P.C., has illegally rejected the suit. So far issues have not been framed by the trial court in accordance with law as is apparent from the order sheet dated 23.9.1997 and 31.3.1998 of the trial Court. The order sheet dated 9.9.1998 was erroneously written showing that issues were framed but in the last two lines of the same order sheet this error is rectified and it is clearly stated that issues could not be framed. Even then suddenly the case was fixed for evidence of plaintiffs without framing of the issues. The cost imposed on the plaintiffs on 5.2.1999 for giving last opportunity to produce oral evidence is also illegal as no evidence can be produced in absence of issues; and finally by impugned order dated 11.3.1999 the suit was rejected under Order 17 Rule 3 of the C.P.C. The trial court has misunderstood this provision. Firstly, the case was not ripe for evidence of the plaintiffs; secondly when there is a counter-claim filed by the non-petitioners-defendants, the trial court should have decided the counter-claim of the non-petitioners-defendants instead of dismissing the suit. It was also pleaded that the petitioners-plaintiffs had filed an application for submitting re-joinder to the counter-claim under Order 8 Rule 9 of the C.P.C. which remains yet to be decided. In view of all these glaring lapses of the trial Court the rejection of the suit amounts to abuse of the process of law. It was also pleaded that the petitioners-plaintiffs had filed an application for submitting re-joinder to the counter-claim under Order 8 Rule 9 of the C.P.C. which remains yet to be decided. In view of all these glaring lapses of the trial Court the rejection of the suit amounts to abuse of the process of law. Therefore, the impugned order should be set aside and the trial Court should be directed to decide the suit in accordance with law, affording opportunity of hearing to the plaintiffs-petitioners. 5. Opposing the contentions of the petitioners, the learned counsel for the non-petitioners raised a preliminary objection of non-maintability of the revision by pleading that the impugned order by which the suit was dismissed under Order 17 Rule 3 of the CPC is an appealable order and not a revisable order. As such the revision petition should be rejected being non-maintainable. The learned counsel cited 1982 AIR (Karnataka) 150 and 1960 AIR (Raj) 245 in support of his contention. Once the suit is dismissed whether rightly or wrongly under Order 17 Rule 3 of the CPC, only appeal can be filed against such an order. It was also contended that by the impugned order suit is also dismissed on non-payment of the cost. When a suit is dismissed for non-paying the cost, such order is also appealable, as is held by Hon'ble Karnataka High Court in 2001 AIR 104. The learned counsel pressed for rejection of the revision on the basis of its non-maintainability. 6. I have given thoughtful consideration to the rival contentions, perused the impugned order and gone through the material on record. 7. Perusal of the impugned order reveals that Assistant Collector has rejected the suit under Order 17 Rule 3 of the C.P.C. for non-production of oral evidence by the petitioner-plaintiffs as well as non-payment of cost of Rs. 50/- imposed on the petitioner-plaintiffs on the previous date of hearing (5.2.1999). In this regard I would like to reproduce the provision of Order 17 Rule 3 of the C.P.C. as under:- "3. Court may proceed notwithstanding either party fails to produce evidence, etc. 50/- imposed on the petitioner-plaintiffs on the previous date of hearing (5.2.1999). In this regard I would like to reproduce the provision of Order 17 Rule 3 of the C.P.C. as under:- "3. Court may proceed notwithstanding either party fails to produce evidence, etc. - Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, [the court may, notwithstanding such default,- (a) if the parties are present, proceed to decide the suit forthwith, or (b) if the parties are, or any of them is, absent, proceed u/Rule 2." The above cited provision of Order 17 Rule 3(b) of the C.P.C. shows that a suit can be dismissed in default of non-appearance as per Rule 2 of Order 17 of the CPC, but such is not the case in hand, as both the parties were present on the day of hearing. In such a situation the option left for the trial Court was to proceed to decide the suit in accordance with the provision of Order 17 Rule 3(a) of the C.P.C. Perusal of the case file of the trial Court shows that the non-petitioners defendants have also submitted their counter-claim. The petitioners -plaintiffs in response to the counter-claim submitted an application under Order 8 Rule 9 of the CPC to allow them to file re-joinder to the counter-claim. The trial Court neither decided the application of Order 8 Rule 9 of the CPC nor decided the counter-claim submitted by the non-petitioners-defendants, but rejected the suit. Thus, the impugned order dated 11.3.1999 cannot be legally said to have been passed under Order 17 Rule 3 of the CPC. The contention of the learned counsel for the non-petitioners is that whether the order of dismissal of the suit under Order 17 Rule 3 of the C.P.C. is right or wrong, it cannot be challenged in revision petition as the impugned order is appealable, as held by Hon'ble Karnatka High Court in 1982 AIR 150 and 1960 AIR 245. The contention of the learned counsel for the non-petitioners is that whether the order of dismissal of the suit under Order 17 Rule 3 of the C.P.C. is right or wrong, it cannot be challenged in revision petition as the impugned order is appealable, as held by Hon'ble Karnatka High Court in 1982 AIR 150 and 1960 AIR 245. The learned counsel submitted that though the Order 43 of the CPC is silent in respect of an appeal against the order passed under Order 17 Rule 3 of the CPC, the impugned order is appealable according to the above cited rulings. I am inclined to agree with the learned counsel for the non-petitioners. However, Assistant Collector, in fact, has not decided the case as envisaged in Order 17 Rule 3(a) of the C.P.C. and as held by Hon'ble Rajasthan High Court in 1960 AIR 345, but has simply dismissed it without dwelling on merit and without deciding the counter-claim. Thus the impugned order is not in accordance with the spirit of Order 17 Rule 3(a) of the C.P.C. 8. Perusal of the impugned order shows that another ground given for rejection of the suit is non-payment of Rs. 50/- which was imposed as cost for giving last opportunity to the petitioner-plaintiffs for production of oral evidence. In this regard perusal of the court file of Assistant Collector makes strange and interesting revelations. The court file of Assistant Collector contains two papers at page 16 and 32 purportedly showing framing of the issues. Both the said issues are different. At page 16, seven issues are written but this paper of issues is altogether unsigned; neither it is signed by the presiding officer (Assistant Collector) nor by any advocate of the parties. This paper does not bear any date also. Apparently this appears to be a waste paper carelessly and purposelessly enclosed in the file. 9. At page 32 another paper of issues is enclosed, it contains nine issues. It seems to have been signed by the Presiding Officer and by one advocate whose name and signature cannot be deciphered. This paper at page No. 32 bears date 13.6.1996. Apparently this appears to be a waste paper carelessly and purposelessly enclosed in the file. 9. At page 32 another paper of issues is enclosed, it contains nine issues. It seems to have been signed by the Presiding Officer and by one advocate whose name and signature cannot be deciphered. This paper at page No. 32 bears date 13.6.1996. Interestingly and surprisingly the order sheet of the trial Court dated 13.6.1996 has two conflicting versions; in first two lines it is stated that issues are yet to be framed and in the third line it is stated that a draft of issues are submitted which is enclosed in the file. Thereafter the order sheet dated 23.9.1997 again mentions that issues are yet to be framed and next date for framing of issues is fixed as 26.9.1997; thereafter the order sheet dated 31.3.1998, 9.9.1998 and 31.10.1998 show that issues are still not framed. The order sheet dated 9.9.1998 is again confusing and conflicting: initially it says that issues are framed thereafter in post-script (iqu'p%) it shows that issues have not been framed. This non-framing of issues is ratified by the order sheet dated 31.10.1998. On the next date of hearing fixed 8.12.1998 and 12.1.1999 presiding officer himself was not available. Thus, it is evident from perusal of the order sheets of the court file that issues were not framed up to 12.1.1999. Thereafter suddenly on 22.1.1999 the case was fixed for oral evidence of the plaintiffs without proper framing of issues; and on 5.2.1999 last opportunity was given to the plaintiffs for production of oral evidence on cost of Rs. 50/-, and on 11.3.1999 the suit was dismissed by the impugned order under Order 17 Rule 3 of the CPC. 10. This manifestly shows that presiding officer has not only misconceived the provision of Order 17 Rule 3 of the CPC but also has acted arbitrarily and high-handedly. When issues are not properly and legally framed and explained to both the parties, fixing of date for production of oral evidence by the plaintiffs is not only procedurally wrong but illegal. Since the cost could not have been legally imposed on the plaintiffs for furnishing of oral evidence for the want of framing of issues, rejection of the suit for non-payment of cost is abuse of the process of law. 11. Since the cost could not have been legally imposed on the plaintiffs for furnishing of oral evidence for the want of framing of issues, rejection of the suit for non-payment of cost is abuse of the process of law. 11. Order 43 of the CPC provides for provision of appeals from orders: but Order 43 of the CPC is silent about the order passed under Order 17 Rule 3 of the CPC. Apparently the impugned order is not an appealable order under Order 43 of the CPC. In such a situation according to section 230 of the Act Board of Revenue can call for the record of any case decided by any subordinate revenue court in which no appeal lies either to the Board of Revenue or to a civil court if such subordinate court has committed jurisdictional error or acted illegally or with material irregularity. In the present case under consideration Assistant Collector has not only abused his jurisdictional power but acted illegally and arbitrarily with material irregularity. 12. As discussed and analysed in the foregoing paras, the present revision petition was filed in this court on 15.5.1999. Even since it has been pending decision for more than twelve years. If the case is returned to the petitioners-plaintiffs for filing appeal against the impugned order after twelve years of its hanging fire, it would not only frustrate the objective of providing justice but is likely to result in the miscarriage of justice as well. Procedure is hand-maiden of justice; it should not be allowed to strangulate deliverance of justice. Therefore, in the chequered facts and circumstances of the case as enumerated herein-above. I deem it a fit case to exercise general power of superintendence and control over subordinate revenue courts vested in this court under Section 221 of the Act, particularly, when Order 43 of the CPC is silent about such impugned order; and decide the case under consideration finally with setting aside of the impugned order. 13. As a result, the impugned order dated 11.3.1999 is set aside, the case is remitted to Assistant Collector Bansur (Alwar) with direction to frame issues in accordance with law and decide the suit after affording opportunity of hearing to both the parties in accordance with the laid down process, and provision of the Act. Pronounced.