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2012 DIGILAW 1777 (RAJ)

Resham Dei v. Maharaj Singh

2012-08-16

ALOK SHARMA

body2012
Hon'ble SHARMA, J.—This petition has been filed with the prayer to quash and set the orders dated 16th November, 2011 passed by the Board of Revenue (hereinafter to be referred in short 'BOR') dismissing the appeal against the judgment and decree passed by the Revenue Appellate Authority, Bharatpur, as also the order of 15th March, 2012 dismissing the restoration application filed by the petitioner-appellant. It has been prayed that the appeal pending before the BOR be restored to its original number and be heard on merits. 2. The facts of the case are that the plaintiffs-respondents no. 1 to 6 (five sons and wife of deceased Lhore) filed a suit no. 293/1994 against the defendants-petitioners before the Assistant Collector, Dholpur for declaration and injunction, which came to be dismissed on 17th September, 1994. Aggrieved of the judgment and decree dated 17th September, 1994, the plaintiffs-respondents preferred one common first appeal before the Revenue Appellate Authority, Bharatpur, which was registered as Appeal No. 23/1995. The appeal was allowed on pleading of no instructions by the counsel appearing for the respondents in the appeal (petitioners herein), the judgment and decree dated 17th September, 1994 passed by the Assistant Collector, Dholpur was set aside vide order dated 22nd November, 2000 and the suit decreed. Aggrieved of the order dated 22nd November, 2000, the petitioners preferred a second appeal before the BOR which was registered as Appeal No. 4978/2004. 3. That on notices being issued by the BOR, the respondent no. 1 Maharaj Singh appeared through his counsel. However, in spite of the fact that earlier all through, the respondents in the appeal before the BOR had appeared through one counsel as in the suit before the Assistant Collector, Dholpur, and before the Revenue Appellate Authority, Bharatpur in view of all being legal heirs of Lhore, before the BOR 5 of the respondents did not file their appearance, consequent to which the second appeal before BOR continued to remain pending for completion of service. 4. The petitioners on their part having been granted benefit of ex-parte interim order passed by the BOR at the time of admission, appear to have been lethargic in ensuring formal service on the remainder respondents before the BOR aside of service on Maharaj Singh, who was represented by his counsel. 4. The petitioners on their part having been granted benefit of ex-parte interim order passed by the BOR at the time of admission, appear to have been lethargic in ensuring formal service on the remainder respondents before the BOR aside of service on Maharaj Singh, who was represented by his counsel. The petitioners did not file as they ought to have, any application before the BOR that Maharaj Singh having been served and the other respondents before BOR being his brothers and mother, who had before the lower court agitated the matter along with him, should be taken to be served as they or be reasonably considered to have notice of the pending appeal before the BOR in the facts and circumstances of the case. Nor the petitioners filed any application for service by registered post or by way of substituted service. Be that as it may, in view of the fact that the petitioners are persons with agricultural and rural background, it appears that they were not adequately advised to take effective steps to seek directions from the court with regard to deemed service or ensure actual service on the unserved respondents in the appeal. The situation appears to have been further complicated when one of the respondents (brother of other 4 respondents) Modho expired and this fact was not brought to the notice of the appellants before the BOR, the petitioners herein by filing a proper application under Order 22 Rule 10-A of CPC in time. However, it appears that in the order sheet dated 5th May, 2011, the fact of Modho's death was recorded in the proceedings before BOR. Counsel for the petitioners submits that an application for bringing the legal representatives of the respondent Modho had been filed before the BOR but was not addressed by the BOR. 5. On the matter coming up before Board on 16th November, 2011, counsel for the appellants (now petitioners) before the BOR, sought time for filing fresh summons and notices for service on the remaining unserved respondents in the appeal. The BOR, however, taking into consideration the fact that the matter was pending for filing of summons for the last about 5 years, denied the request for grant of time for filing of notices and dismissed the appeal. 6. The BOR, however, taking into consideration the fact that the matter was pending for filing of summons for the last about 5 years, denied the request for grant of time for filing of notices and dismissed the appeal. 6. Aggrieved of the dismissal of the appeal vide order dated 16th November, 2011, the petitioners, as appellants before the BOR, moved an application for restoration of the appeal. The said application was dismissed on 15th March, 2012. The BOR dismissed the said restoration application on the fact that the grounds advanced in the application for restoration were factually incorrect. It also held that in terms of Order 41 Rule 19 of CPC, on a matter being dismissed in the presence of the counsel for parties, an application for restoration was not maintainable. 7. I have heard the learned counsel for the petitioners as also the respondents and perused the writ petition including the impugned orders. 8. Counsel for the petitioners has submitted that while passing the order dated 16th November, 2011, even though BOR was technically right in attributing default on the part of appellants before it in failing to file notices for service on respondents, the Board ought to have considered the fact that one of the brothers i.e. respondent no.1 Maharaj Singh before the BOR was served and that other unserved respondents were his family members who had in the suit and in the first appeal agitated the matter jointly engaging one counsel. He submits that the BOR should have taken into consideration the commonality of the interest of the respondents and in the facts of the case inferred that the unserved respondents were aware of the proceedings pending before the BOR and yet avoiding service. Counsel submitted that in such a situation, the BOR should have granted another opportunity to the petitioners, as appellants before it, to file fresh notices for service by registered post and/or substituted service. Counsel submitted that Board ought to have focused on the substantive justice of the case applying its mind to the over all facts of the case rather than adopt a mechanical approach to the issue of service on the unserved respondents in the appeal before it. 9. Counsel submitted that Board ought to have focused on the substantive justice of the case applying its mind to the over all facts of the case rather than adopt a mechanical approach to the issue of service on the unserved respondents in the appeal before it. 9. Counsel further submitted that the order dated 15th March, 2012 passed by the BOR on the restoration application is overtly technical and the petitioners-appellants should not have been denied a right of hearing of the matter on the merits. Counsel submitted that the suit against the petitioners before the Assistant Collector, Dholpur was heard ex-parte because of fraudulent service on the petitioners (defendants in the suit), which was fortunately dismissed. Counsel further submitted that the appeal before the Revenue Appellate Authority, Bharatpur came to be allowed on the counsel for the petitioners (respondents in the appeal) before the Revenue Appellate Authority surprisingly pleading no instructions at the stage of arguments. Hence the second appeal was filed before the BOR. Counsel submitted that if the second appeal was not heard on merits, the petitioners would suffer the consequences of an order passed by the Revenue Appellate Authority without any opportunity of the matter being heard on merits at any stage. It is submitted by the counsel that this cannot be the manner of dispensation of justice and determination of legal rights. 10. Mr. G.K. Garg Senior Counsel with Mr. Yash Sharma appearing for the respondents would submit that the petitioners has been grossly negligent in pursuing the case before the BOR and in spite of about 5 years lapsing no concrete steps were taken to serve the unserved respondents in the appeal. It is submitted that in this view of the matter, the order dated 16th November, 2011 cannot be faulted on any count. He further submits that even while the presence of the counsel for the petitioners before the BOR was shown in the order dated 16th November, 2011, in the application for restoration the ground agitated for restoration of the appeal was the engagement of the counsel for the appellant in another appeal before another Bench at the relevant time. He further submits that even while the presence of the counsel for the petitioners before the BOR was shown in the order dated 16th November, 2011, in the application for restoration the ground agitated for restoration of the appeal was the engagement of the counsel for the appellant in another appeal before another Bench at the relevant time. Counsel also argued that the application for restoration was not maintainable where the appeal has been dismissed in the presence of the counsel and an appropriate application in such a situation would have been an application for recalling the order dated 16th November, 2011. 11. Heard the learned counsel for the parties and perused the writ petition as also the impugned orders. 12. In view of the obtaining facts of the case, more particularly the fact that respondent no.1 Maharaj Singh had admittedly been served in the proceedings before the BOR and other contesting respondents were his brothers and mother, who had agitated a common cause with him in the proceedings before the Assistant Collector, Dholpur and the Revenue Appellate Authority, it appears that service on respondents in the appeal before the BOR was being deliberately avoided by the unserved respondents. Purpose of service of notice is to inform the respondents/defendants of a pending proceedings before the court. There is nothing magical about actual service, if from the facts on record a reasonable inference can be drawn that the unserved respondents/defendants had actual knowledge of pending proceedings. Apart from engaging a common counsel in the proceedings before the Assistant Collector, Dholpur and the Revenue Appellate Authority, Bharatpur even in the writ petition before this Court, all the respondents have engaged one counsel Mr. G.K. Garg Senior Counsel with Mr. Yash Sharma. This court cannot close its eyes to the reality of proceedings before the courts where related respondents/defendants with commonality of interest in the litigation play hide and seek such as while one related respondent is served and files appearance in court, others with ties of kinship and even with a common address with the served respondent play truant and avoid service. The BOR should have been alive to the practicality of the situation and the practice not unusual in situations as the one before it. The BOR should have been alive to the practicality of the situation and the practice not unusual in situations as the one before it. This court cannot and should not act mechanically in overlooking the fact that not only had the unserved respondents in the appeal before the BOR filed a joint suit engaging a common lawyer before the Assistant Collector and the RAA, Bharatpur but even before this Court, the same counsel has been engaged by them. Commonality of interest of the respondents and concerted action on their part is writ large in the facts of the case. 13. Difficulty in service of notices issued by courts to the defendants/respondents and incomplete service on defendants/respondents in spite of complete addresses and in some cases addresses set out by them in proceedings before the trial courts is an obvious bottleneck in the administration of justice. Courts have to be more proactive in applying their minds even to the mundane aspects of service without which cases before the court and proceedings in such cases are reduced to mere file pushing and not the exercise of serious and real adjudicatory functions of the courts. Machinations in avoiding service of notices issued by courts are a challenge to the administration of justice and should be, where reasonable inferences of service can be drawn, be overcome. 14. I would therefore, in the facts of the case, in the interest of justice and without feeling the necessity of the addressing the technical submission with regard to restoration application before BOR not being maintainable quash the orders 16th November, 2011 and 15th March, 2012 passed by the BOR and direct that the appeal be restored to its original number before the Board. In view of the fact that the respondents are represented before this Court by one counsel, I would hold that the respondents are unquestionably aware of the second appeal now pending before the BOR and service on them in the said case is deemed to have been completed. As far as application for bringing legal representatives of the deceased respondents Modho on record (which is pending before the BOR) is concerned, the said application be decided in accordance with law by the BOR, Ajmer. 15. The writ petition is allowed. Stay application needs no address.