Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 1371 (RAJ)

Prahlad Chaumal v. Kailash Biyala

2012-05-23

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—The petitioner has challenged the order dated 14.12.2011, passed by the Board of Revenue, Ajmer holding that a revision petition against an ad interim ex-parte order was not maintainable under Section 84A of the Land Revenue Act, 1956 (hereinafter `the Act of 1956'). Consequent to the order dated 14.12.2011, the order dated 21.9.2011, passed by the RAA, Sikar refusing to interfere with the order dated 6.9.2011, passed by the Sub Divisional Officer, Laxmangarh has been sustained. 2. The case of the petitioner is that on a suit for declaration, partition and permanent injunction filed by the petitioner (hereinafter `the plaintiff'), the SDO, Laxmangarh granted an ad interim order on 28.6.2011 directing status quo with regard to the property in dispute in the suit. It is submitted that on notice being served on the defendant No. 12 (respondent No. 12 herein), the defendant No. 12 moved an application before the trial court for calling of documents on which the petitioner has laid the suit as the adopted son of one Shiv Kumar. It is submitted that the SDO, Laxmangarh while disposing of the said application also vacated the ad interim ex-parte order dated 28.6.2011 without as much as adverting to the three ingredients relevant for grant or refusal of interim relief under Order 39 Rules 1 & 2 CPC. It is submitted that an appeal was filed by the plaintiff against the order dated 6.9.2011 passed by the SDO, Laxmangarh before the RAA, who while keeping the appeal pending, dismissed the application for interim relief vide order dated 21.9.2011. A consequent revision petition to the Board of Revenue was dismissed for want of its maintainability with reference to Section 84A of the Act of 1956. 3.Mr. J.P. Goyal, Sr. Advocate with Ms. Manisha Surana, appearing for the plaintiff has emphatically submitted that in the obtaining situation even while the plaintiffs application under Order 39 Rule 1 & 2 CPC filed in the suit for declaration, partition and permanent injunction before the SDO, Laxmangarh continues to pending and has not been disposed of by a reasoned and speaking order as warranted in law, yet under the order dated 6.9.2011 passed by the SDO, the plaintiff has been denied relief and the ad interim status quo order dated 28.6.2011 vacated while deciding a different application filed by one of the defendants in the suit. It is submitted that consequently, the plaintiff is without protection while the defendants continue to alienate or otherwise dispose of the property which is the subject matter of the suit before the SDO, Laxmangarh. Counsel submits that the order dated 6.9.2011 passed by the SDO, Laxmangarh vacating the ad interim ex-parte order dated 28.6.2011 on an application for calling of documents filed by the defendant No. 12 was wholly without jurisdiction and completely improper as also a complete misdirection in law. 4. Mr. K.K. Mehrishi, Sr. Advocate with Mr. Sanjay Mehrishi appearing for the respondents would submit that the revision petition before the Board of Revenue having been held to be not maintainable with regard to Section 84A of the Act of 1956, this writ petition challenging the ad interim ex-parte order dated 28.6.2011 also ought to be so dismissed at the threshold. Counsel further submits that the petitioner herein and the plaintiff before the SDO, Laxmangarh is not the adopted son of Shiv Kumar and on this ground also the entire suit for declaration, partition and permanent injunction was not maintainable and the suit liable to be dismissed for falling to disclose a right to sue and hence a cause of action. The submission is that the order dated 6.9.2011 passed by the SDO, Laxmangarh as upheld by the RAA, Sikar and the Board of Revenue, Ajmer consequently deserves no interference. 5. I have heard the counsel for the parties and perused the writ petition as also the impugned orders. 6. The start fact which stares at the Court in the present case is that the ad-interim ex-parte order dated 28.6.2011 was vacated in collateral proceed-ings in a separate application moved by the defendant No. 12 even while the application under Order 39 Rules 1 & 2 CPC remained pending. It is trite that an application under Order 39 Rules 1 & 2 CPC has to be adjudicated with due application of mind having regard to the three ingredients of prima facie case, irreparable injuries and balance of convenience. Admittedly, this has not been done and in a complete misdirection, the SDO, Laxmangarh vacated the ad-interim ex-parte order dated 28.6.2011 vide order dated 6.9.2011 while dealing with an application for calling of documents relating to the claim of the peti-tioner-plaintiff to be adopted son of Shiv Kumar filed by the defendant No. 12. 7. Admittedly, this has not been done and in a complete misdirection, the SDO, Laxmangarh vacated the ad-interim ex-parte order dated 28.6.2011 vide order dated 6.9.2011 while dealing with an application for calling of documents relating to the claim of the peti-tioner-plaintiff to be adopted son of Shiv Kumar filed by the defendant No. 12. 7. In my considered opinion, the RAA, Sikar as also Board of Revenue, Ajmer have completely failed in their duty to ensure that the procedures in law are followed in the adjudication of proceedings before the courts. No doubt, the Board of Revenue does not have the jurisdiction under Section 84A of the Act of 1956 to interfere with interim orders, but yet in terms of Section 9 thereof as a superior authority, it was the bounden duty of the Board of Revenue to set right gross procedural irregularities impeaching upon the right of the parties when such irregularities came to its notice. In the instant case, the irregularity in vacating the ad-interim ex-parte order dated 28.6.2011 while deciding a separate application unconnected to the ad interim order dated 28.6.2011 was ex-facie evident. 8. For the aforesaid reasons, I set aside the order of the Board of Revenue passed on 14.12.2011, the order of the RAA, Sikar passed on 21.9.2011 as also the order of the SDO, passed on 6.9.2011 in so far as the orders seek to vacate the ad-interim ex-parte status quo order dated 28.6.2011 or uphold it. 9. The SDO, Laxmangarh will now proceed to adjudicate the application under Order 39 Rules 1 & 2 CPC pending before it in the petitioner-plaintiff's suit for declaration, partition and permanent injunction and decide the same by a detailed and reasoned order taking into consideration the three ingre-dients of prima facie case, of balance of convenience and irreparable injury. 10. No observations of this Court will affect the merits of the matter and the adjudication of the application under Order 39 Rules 1 & 2 CPC before the SDO, Laxmangarh. The application be decided with reference to the facts and evidence on record and extant law within a period of fifteen days from the receipt of certified copy of this order by the trial court. 11. The writ petition is allowed with the aforesaid observations.