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2011 DIGILAW 1247 (RAJ)

Hara Ram thr. L. Rs. v. Kheraj Ram

2011-06-29

DINESH MAHESHWARI

body2011
Hon'ble MAHESHWARI, J.—This writ petition is directed against the order dated 18.2.2011 (Annex. 15) whereby the Board of Revenue for Rajasthan, Ajmer (`the Board'/`the Board of Revenue') has dismissed the revision petition (No. TA/10635/2002/Barmer) filed by the present petitioners and has maintained the order dated 5.12.2001 as passed by the Revenue Appellate Authority, Jaisalmer-Barmer (`the RAA') in Appeal No. 21/2001. 2. By the said order dated 5.12.2001, the RAA did not approve of the order dated 23.4.2001 as passed by the Sub-Divisional Officer, Barmer in rejecting an application for setting aside ex parte decree dated 27.3.1999 as moved by the defendants Nos. 3 to 5 (respondents No. 1 to 3 herein); and, while accepting the appeal, the RAA allowed the application so moved and restored the suit for decision on merits. 3. Briefly put, the relevant background aspects of the matter are that late Shri Hara Ram son of Eshar Ram Mali, father of the petitioners No. 1 to 9 and brother of the petitioners Nos. 2 and 3, had filed a revenue suit under Sections 88, 188 of the Rajasthan Tenancy Act, 1955 in the Court of Sub-Divisional Officer, Barmer (Suit No. 180/1993) while impleading the present petitioners No. 2 and 3 as the defendants No. 1 and 2; and the present respondents No.1 to 3 as the other defendants. The plaintiff claimed his right over the land in question, said to be comprised in khasra No. 403 and 402 at village Dhudha, Patwar Circle Kavas, District Barmer with the submissions that he had purchased the same in Svt. Year 2010 in an oral transaction for a sum of Rs. 60/-. The plaintiff alleged that though at the time of settlement, the land in question came to be recorded in the name of his father and parcha lagan was also issued in his father's name, but he alone (the plaintiff) remained in possession thereof; and that after the demise of his father, the land in question was mutated jointly in the names of the brothers i.e., himself and the defendants No.1 and 2 though he alone was in cultivatory possession thereof. The plaintiff further averred that there had been propositions of settlement amongst the brothers and while some other pieces of land were given to the defendants No.1 and 2, the land in question as comprised in khasra No. 403 and 402 remained with himself. 4. The plaintiff further averred that there had been propositions of settlement amongst the brothers and while some other pieces of land were given to the defendants No.1 and 2, the land in question as comprised in khasra No. 403 and 402 remained with himself. 4. The plaintiff stated the grievance that the defendants No. 3, 4 and 5 (respondents No. 1 to 3 herein) attempted to take over possession of the land in question and alleged having purchased the same from the plaintiff's brothers (defendants No. 1 and 2); and upon obtaining the copy of jamabandi, he came to know that the names of defendants No. 1 and 2 continued in the records and the defendant No. 2 proceeded to execute a sale deed in favour of the defendant No. 3 though not entitled to do so. While stating that he would adopt other proceedings for setting aside the sale deed, the plaintiff stated the apprehension that the defendants No. 4 and 5 were also attempting to take over possession of the land in question by getting executed another illegal sale deed. 5. With the submissions aforesaid, the plaintiff prayed for the relief of declaration that he was the exclusive khatedar in relation to the land in question and also for correction in the revenue records with deletion of the names of the defendants. The plaintiff also prayed that the sale deed executed by the defendant No. 2 in favour of defendant No. 3 be declared inoperative against himself and for consequential injunction. It appears that during the pendency of the suit, there had been another sale deed executed in favour of the defendant No. 4 whereupon the plaintiff prayed for and was allowed to amend the plaint on 21.9.1994. 6. So far the other proceedings in the suit are concerned, it appears that an appearance was put on behalf of the defendants but for not filing of written statement despite opportunities, their right of filing written statement was closed by the order dated 10.5.1994; and after filing of the amended plaint also, no written statement was filed and ultimately, the right of filing written statement in relation to the amended plaint was also closed on 17.8.1995. It is noticed from the certified copies of the ordersheets placed on record by the petitioners (Annexure-16) that until 27.6.1995, there had been the presence of the counsel for both the sides but all the proceedings from 27.7.1995 onwards took place with nobody being present for the defendants. In evidence, the plaintiff was examined on 30.7.1996, and, apart from other witnesses, the defendant No. 1 was examined as the plaintiff's witness on 19.1.1998 and the defendant No. 2 was also examined as the plaintiff's witness on 3.8.1998. The suit was ultimately decreed on 27.3.1999 but, as noticed, with nobody being present for the defendants. 7. Thereafter, the defendants No. 3 to 5 (respondent No. 1 to 3 herein) moved an application under Order IX Rule 13 of the Code of Civil Procedure (`CPC') for setting aside the decree dated 27.3.1999 with the submissions that their counsel did not inform about the proceedings and about the decision of the suit; and they came to know about the decree only upon making inquiries on 7.4.2000 and thereupon, they obtained the copies on 18.4.2000. The defendants-applicants also moved an application seeking condonation of delay. The applications were put to contest by the plaintiff. The learned Trial Court rejected the applications by its order dated 23.4.2001 while observing, with reference to the facts of the case and the proceedings in the suit, that as per law, the applicants would be deemed to be having the knowledge about the judgment and decree dated 27.3.1999. 8. Aggrieved by the order so passed by the Sub-Divisional Officer, Barmer on 23.4.2001, the defendants, applicants preferred an appeal that came to be allowed by the RAA on 5.12.2001. The learned RAA observed that upon the counsel not attending the matter, a notice ought to have been given to the defendants; and that a party to the litigation should not be penalised for the fault or mistake on the part of the counsel. The learned RAA allowed the appeal, set aside the impugned order dated 23.4.2001 and so also the judgment and decree dated 23.7.1999; and consequently, restored the suit for reconsideration and decision afresh after opportunity of hearing to both the parties. 9. The learned RAA allowed the appeal, set aside the impugned order dated 23.4.2001 and so also the judgment and decree dated 23.7.1999; and consequently, restored the suit for reconsideration and decision afresh after opportunity of hearing to both the parties. 9. The plaintiff Hara Ram and so also his brothers Labhu Ram and Derag Ram (defendants No. 1 & 2) filed the revision petition against the order so passed by the RAA before the Board of Revenue that has been dismissed by the impugned order dated 18.2.2011 with the Board finding no case for interference in the revisional jurisdiction but while allowing costs of Rs. 500/- to the petitioners. The Board said,- ^^mijksDr U;k; n`"VkUrksa esa izfrikfnr fl)kUrksa ds vuqlj.k esa orZeku izdj.k dh ifjfLFkfr;ksa dks n`f"Vxr j[krs gq, ge vihyh; U;k;ky; ds fu.kZ; esa fdlh izdkj dk gLr{ksi djuk mfpr ugha le>rs gSa D;ksafd orZeku izdj.k dh izfroknh vizkFkhZ ds odhy }kjk tokcnkok cUn fd;s tkus dh lwpuk izfroknh dks ugha nh ,oa vuqifLFkr jgus dh lwpuk Hkh ugha nhA ftlls izfroknh dks viuk i{k izLrqr djus dk volj izkIr ugha gqvkA ;gka ;g Hkh Li"V gS fd ijh{k.k U;k;ky; }kjk izfroknh ds fo:) ,drjQk dk;Zokgh dk vkns'k ugha fn;k x;k gSA fu.kZ; dh tkudkjh fnukad 7-4-2000 dks U;k;ky; esa vkdj fyfid ls tkudkjh djus ij gksuk crk;k gSA blds leFkZu esa 'kiFk i= is'k fd;k gSA ftlds [k.Mu esa dksbZ 'kiFk i= is'k ugha fd;k x;k gSA ftlls nsjh dks dUMksu fd;k tkuk mfpr gSA U;k; ls lkekU; fl)kUr ds vuqlkj Hkh i{kdkj dks mldk i{k izLrqr djus dk volj fn;k tkuk pkfg;sA ,slh fLFkfr esa voS/kkfudrk vFkok vfu;ferrk ugha ikrs gSa ,oa ;g fuxjkuh [kkfjt djuk mfpr le>rs gSaA orZeku izkFkhZx.k dks blls gqbZ ijs'kkuh dks n`f"Vxr j[krs gq, ge izfroknh orZeku vizkFkhZx.k ls mUgsa dksLV fnykbZ tkuk mfpr le>rs gSaA vr% mijksDr foospu ds vuqlkj ;g fuxjkuh funsZ'kksa ds lkFk [kkfjt dh tkrh gS ,oa Hkw izcU/k vf/kdkjh ,oa insu jktLo vihy izkf/kdkjh ckM+esj-tSlyesj eq- tks/kiqj dk fu.kZ; fnukad 5-12-2001 ;Fkkor j[kk x;kA izfroknh orZeku vizkFkhZ dksLV dh jkf'k #i;s 500@- oknh orZeku izkFkhZx.k dks ijh{k.k U;k;ky; esa vnk djsaA nksuksa i{kksa dks ikcUn fd;k tkrk gS fd lgk;d dysDVj] ckM+esj ds U;k;ky; esa fnukad 21-3-2011 dks mifLFkr jgsaA** 10. Seeking to question the order aforesaid, it is submitted that the RAA and the Board have proceeded in a wholly cursory manner and have failed to consider the very incompetence of the proceedings. It is contended that in the present case, in fact, the decree was not passed ex parte as such and, therefore, the provisions contained in Rule 13 of Order IX of the Code of Civil Procedure were not even applicable. It is further submitted that even if the application was considered per Rule 13 ibid., the RAA and the Board failed to consider that in the present case, the summonses were duly served and the counsel did appear for the defendants but then, the written statement was not filed, whether to the original plaint or even to the amended plaint and twice over, the right of filing written statement was closed; and then, the suit was decreed nearly 4 years after second closing of the right of written statement. It is contended that the suggestion as made by the defendants, of want of information from the counsel, remains baseless and unacceptable when they have failed to show as to what steps were taken by them for conduct of the case for about 6 years. It is also submitted that the right of the defendants to file the written statement had been closed and such orders were never challenged by them in any proceedings; and for such orders having become final, there was no justification to set aside the decree passed by the Trial Court. It is submitted that setting aside of the decree in a rather mechanical manner has caused serious prejudice to the petitioners and the orders impugned call for interference. The learned counsel for the petitioner has referred to and replied upon the decisions in Mahabir Singh vs. Subhash & Ors.: (2008) 1 SCC 358 , Sunil Poddar & Ors. vs. Union Bank of India: (2008) 2 SCC 326 , M/s. John Impex (Pvt.) Ltd. & Anr. vs. Athul Kapur & Ors. : 2009 CDR 1023 (SC), and Habib Ahmed & Anr. vs. Gulab Devi & Ors. : RLW 2002 (2) Raj. 1262. 11. Having given a thoughtful consideration to the submissions made and having examined the material placed on record, this Court is not persuaded to consider interference in this matter in writ jurisdiction. 12. vs. Athul Kapur & Ors. : 2009 CDR 1023 (SC), and Habib Ahmed & Anr. vs. Gulab Devi & Ors. : RLW 2002 (2) Raj. 1262. 11. Having given a thoughtful consideration to the submissions made and having examined the material placed on record, this Court is not persuaded to consider interference in this matter in writ jurisdiction. 12. A look at the background facts and aspects makes it clear that the learned RAA found it unjustified to maintain the decree dated 27.3.1999 that was passed in the absence of the defendants; and while setting it aside, restored the suit for reconsideration and decision on merits. The Board of Revenue, found no case of jurisdictional error and declined to interfere in the revisional jurisdiction but allowed an amount of Rs. 500/- towards costs. The order as passed by the Board of Revenue does not suffer from any jurisdictional error nor could it be said that the Board of Revenue has in any manner violated or ignored its parameters while dealing with the revision petition. 13. It remains trite that a matter is preferred to be decided on merits with opportunity of hearing to both the parties and in the given set of facts and circumstances, when the RAA has found that the affected defendants had been prejudiced and, while setting aside the decree passed in their absence, has set the proceedings for bipartite hearing, there appears no reason for this Court to consider interference in the writ jurisdiction so as to maintain the ex-parte decree. 14. Though it has been contended on behalf of the petitioners that the proceedings were not as such set ex-parte and hence, the decree passed by the Trial Court in this case could not have been set aside under Order IX Rule 13 CPC but this submission cannot be accepted for the reason that even if the Trial Court nowhere used the expression `ex-parte', the fact of the matter had been that ever since 27.7.1995, all the proceedings in the suit took place with nobody being present for the defendants. Obviously, the Trial Court took the evidence only on behalf of the plaintiffs and decreed the suit after hearing the counsel for the plaintiffs without there being any presence on behalf of the defendants. Obviously, the Trial Court took the evidence only on behalf of the plaintiffs and decreed the suit after hearing the counsel for the plaintiffs without there being any presence on behalf of the defendants. It had clearly been a case where a decree had been passed ex-parte against the defendants and they could have applied for an order for setting such decree aside. It has, of course, not been the case where summonses were not duly served and in fact, earlier, the counsel did appear on behalf of the defendants. However, for the counsel having not appeared when the suit was called on for hearing and the defendants having made out a case of being not aware of the counsel's absence; the order passed by the Appellate Authority setting the decree aside cannot be said to be without jurisdiction. Equally, when the Board of Revenue has also not committed any jurisdictional error when it has affirmed the order so passed by the RAA while putting the applicants-defendants to the terms regarding costs. 15. Even the nature of the suit and dealings of the parties rather fortify the approach of the RAA and the Board in this matter. The plaintiff had asked for declaration and alteration of the revenue record while asserting that he had the exclusive rights in the land inquestion and his brothers, defendants No. 1 and 2, had no such right. From the original plaint and so also amended plaint, it is apparent that the brothers of the petitioners, who were duly recorded in the revenue records as joint khatedars, had earlier alienated the part of land to the other defendants (respondents No. 1 to 3 herein). It has been averred in this petition that defendants No. 1 and 2, brothers of the plaintiff. "joined the cause with the plaintiff". It is also noticed that the defendants No. 1 and 2 appeared in the suit as the plaintiff's witnesses on 19.1.1998 and 3.8.1998 respectively. Though there had not been any transposition or deletion of the parties in the suit and the defendants No. 1 and 2 remained on record as such, and were shown in that capacity only in the decree dated 27.3.1999, but they joined the plaintiff in the revision petition and they have, in fact, joined this writ petition too as the petitioners. There remains nothing of doubt that the persons of the family i.e. the legal representatives of the plaintiff and the defendants No. 1 and 2 are now proceeding in tandem. In such a matter, the alienees from the brothers of the plaintiff do deserve an opportunity to contest the matter. Thus, in the overall circumstances, the impugned orders do not lead to failure of justice; rather they subserve the cause of justice. 16. The submission that the right of filing the written statement had already been closed and such orders were not challenged, if at all, carry only hyper-technical value and not beyond. True that the right of filing the written statement to the original plaint was closed on 10.5.1994 but thereafter, the plaint was allowed to be amended on 21.9.1994 and then, the counsel for the defendants did not appear from 27.7.1995 onwards. The right of filing written statement in relation to the amended plaint was closed on 17.8.1995 and, after evidence, ex-parte decree was passed on 27.3.1999. In the given set of facts and circumstances, with setting aside of the ex-parte decree, the orders closing right of written statement could not have been maintained and the learned RAA has, therefore, rightly remanded the matter for decision afresh on merits after extending proper opportunity of hearing to both the parties. 17. Though the learned counsel for the petitioner has cited the decisions where, in each individual case, the Hon'ble Court found no reason to set aside the ex-parte decree but apparent it is that every such case had its own peculiar facts and features wherefor the ex-parte decree was maintained. 18. In Mahabir Singh's case (supra), the essential aspects were considered upon the admission of the defendant himself that he was aware of the impugned decree about 1-1/2 years prior to filing of the application under Order IX Rule 13 CPC. The Hon'ble Supreme Court, thus, observed that period of limitation was required to be reckoned from such date of knowledge; and the application filed 1-1/2 years later was barred by limitation and the High Court was in error in ignoring the question of limitation. It has not been established in the present case that the applicants-defendants were aware of the decree prior to the date stated by them i.e., 7.4.2000. 19. It has not been established in the present case that the applicants-defendants were aware of the decree prior to the date stated by them i.e., 7.4.2000. 19. In Sunil Poddar's case (supra), the matter related to the ex-parte decree by the Debt Recovery Tribunal and the Hon'ble Court found the ground of non-service of summons incorrect on facts. 20. In M/s. John Impex (Pvt.) Ltd. (supra), the Hon'ble Supreme Court found the plea as taken by the appellants for setting aside ex-parte decree unacceptable with no cogent and sufficient reason having been assigned for non-appearance. That had been a suit for eviction and therein, apart from other aspects, the decree had already been executed and possession had been delivered to the respondents; and thereafter, partition had also been effected amongst the co-sharers and the property in question had been physically divided. Moreover, the defendants had failed to make payment of rent and rather avoided to attend the matter when the applications were moved seeking payment of rent and for striking out the defence. The Hon'ble Supreme Court found correct the contention that the sole aim of the appellants was to delay the disposal of the suit. The Hon'ble Supreme Court also found that he appellants had taken a wrong plea that its Managing Director was ill at the relevant time. It does not appear that any such subsequent event of irreversible nature has taken place in the present case after the decree in question that setting it aside would cause prejudice to the petitioners. No other specific instance has been pointed out in this case wherefrom it could be concluded that the defendants No. 3 to 5 have acted in a manner as to deliberately delay the proceedings or have deliberately taken a wrong plea. 21. So far the decision in Habib Ahmed's case (supra) by the Hon'ble Single Judge of this Court is concerned, the details regarding background facts and the subject-matter of the suit are not available in the cited decision. However, in the appeal, this Court found no reason to interfere with the order passed by the Trial Court when the defendant was found wanting in taking appropriate steps at the relevant time. 22. However, in the appeal, this Court found no reason to interfere with the order passed by the Trial Court when the defendant was found wanting in taking appropriate steps at the relevant time. 22. It is apparent that in the matter of considering the prayer for setting aside the ex-parte decree, the overall facts and circumstances are required to be looked at and in the case of total false plea, or deliberate avoidance, or some irreversible subsequent event, or bar of limitation, the application for setting aside ex parte decree could be declined. However, no such aspect appears operating against the applicants-defendants No.3 to 5 in this case. On the contrary, what appears from the record is that earlier the defendants No.1 and 2, the brothers of the plaintiff, had entered into such transactions whereby they alienated their share as recorded khatedars but thereafter, joined the plaintiff in his claim of exclusive khatedari rights in the same land. The plaintiff was aware of execution of a sale deed and made the suggestion in the plaint that he would adopt suitable proceedings for setting aside such a sale. It has not been shown if any such proceedings have at all been adopted. Of course, this Court would not be making comments on the merits of the case but, in the given set of facts and circumstances, it does not appear that the defendants No.3 to 5 had delibe-rately avoided contest of the suit or had taken any such false plea wherefor their prayer for setting aside ex-parte decree is required to be declined. 23. In the net result of the discussion aforesaid, there appears no reason to consider interference in this matter at the instance of the petitioners where, by the orders impugned, the matter is left open for decision on merits after bipartite hearing. It shall, of course, be open for the petitioners to make a request to the learned Trial Court for expeditious proceedings; and it shall be expected of the learned Trial Court to give such a request due consideration and to dispose of the suit at the earliest. With the observations foregoing, the writ petition stands dismissed.