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2013 DIGILAW 1552 (RAJ)

Khema Ram v. State of Rajasthan

2013-09-06

VINEET KOTHARI

body2013
JUDGMENT : 1. The petitioner has approached this Court by way of present writ petition aggrieved by order dated 14.08.2013 (Annex.8) passed by learned S.D.O., Nokha, on an application filed by the respondent No.3- Chetan Ram S/o Lakha Ram (real brother of the present petitioner) under Section 212 of the Rajasthan Tenancy Act, 1955, (for short, hereinafter referred to as 'Act of 1955') for appointment of Receiver on the land in dispute of Khasra Nos. 391 and 392, situated at Village-Sinyala, Tehsil Nokha, District: Bikaner. 2. The dispute is between the two brothers and according to the plaint, there was division of said agricultural land by mutual agreement of 02.02.1983. But, in the suit filed by the respondent No.3/plaintiff, Chetan Ram S/o Lakha Ram, against the petitioner/defendant, Khema Ram S/o Lakha Ram, the plaintiff has claimed that the land of Khasra No. 391 measuring 3.17 Hectares be declared to be in the account of the plaintiff, whereas the land measuring 3.14 Hectares of Khasra No.392 may be declared in the account of the defendant/petitioner, Khema Ram. 3. Mr. Moti Singh, learned counsel for the petitioner/defendant submitted that the suit was registered by the learned revenue court below on 08.08.2013 and the next date was fixed on 05.09.2013 awaiting service of the summons on the defendant/petitioner, however, before 05.09.2013, on 14.08.2013, the case was taken up by the revenue court below i.e. the S.D.O., Nokha on the application filed by the plaintiff/respondent No.3, Chetan Ram under Section 212 (2) of the Act of 1955 for appointment of the Receiver and without giving any opportunity of hearing to the petitioner/defendant, on wholly unfounded grounds, the learned S.D.O., Nokha, vide the impugned order dated 14.08.2013 appointed the Receiver for the land in question of Khasra No.391, of which the petitioner/defendant was in peaceful possession ever since the mutual agreement between the parties on 02.02.1983. Being aggrieved by the same, the defendant/petitioner has approached this Court by way of present writ petition under Article 226 of the Constitution of India. 4. Being aggrieved by the same, the defendant/petitioner has approached this Court by way of present writ petition under Article 226 of the Constitution of India. 4. On the question of availability of the alternative remedy available to the petitioner by way of appeal under Section 225 of the Act of 1955, learned counsel for the petitioner/defendant urged that only final orders passed under Section 212 of the Act of 1955 are appeal able to the next higher authority under Section 225 of the Act of 1955 and since the present ad-interim order dated 14.08.2013 passed by the learned S.D.O. cannot be said to be final order passed on the application under Section 212 of the Act of 1955 as in the end of the said order itself, the next date was fixed on 05.09.2013, therefore, this order is not appeal able in his submission and thus there is no alternative remedy available to him as per provisions of the Act of 1955. He, therefore, submitted that the present writ petition is maintainable and he further urged that on merits the petitioner/defendant has good case since by ex-parte order before the next date fixed in the revenue suit, the learned court below appointed the Receiver on the land in question depriving the petitioner/defendant of his continued peaceful possession of the land in question. 5. Having heard the learned counsel for the petitioner at some length, this Court is of the opinion that the order under challenged in the present writ petition is an appeal able order and an alternative remedy, efficacious and adequate, is available to the petitioner against the said order. It is found relevant to quote the Section 225 of the Act of 1955 hereunder for ready reference:- "S. 225.Appeals from orders- (1) An appeal shall lie from the final order passed on an application of the nature specified in the Third Schedule and from such other orders as are mentioned in Section 212 of this Act and in Section 104 of the Code of Civil Procedure , 1908 (Central Act V. of 1908) (i) to the Collector, if such order is passed by a Tehsildar, (ii) to the Revenue Appellate Authority, if such order is passed by an Assistant Collector, a Sub-Divisional Officer or a Collector, and (iii) to the Board if such order is passed by a Revenue Appellate Authority. (1-A). (1-A). The provisions of sub-section (1) shall apply to all suits, applications or proceedings pending on the date of the commencement of the Rajasthan Revenue Laws (Amendment) Ordinance, 1975. (2) No appeal shall lie from any order passed in appeal under this section." 6. A bare perusal of the said provision of Section 225 of the Act of 1955 clearly shows that an appeal lies, inter-alia, "from such other orders as are mentioned in Section 212 of this Act" to the Collector, or the Revenue Appellate Authority or Board, depending upon the designation of the officer or revenue court, who has passed the impugned order. 7. In sub-Section (1) of Section 212 of the Act of 1955, the three clauses, therein are added by conjunction "and", firstly the word 'final' has not been used in the second clause, namely, "from such other orders as are mentioned in Section 212 of this Act" and, therefore, the contention of the learned counsel for the petitioner that the impugned order dated 14.08.2013 not being a 'final order' under Section 212 of the Act of 1955, therefore, appeal does not lie against that, is found to be misconceived and incorrect. It is only the "final order" passed on the application of the nature specified in Third Schedule, which is appeal able to the authorities specified in this section, and not other orders, which may fall within the ambit and scope of Section 212 of the Act of 1955 or Section 104 of Civil Procedure Code. 8. Section 212 of the Act of 1955 envisages appointment of the Receiver on the application filed by a party to the revenue suit. Thus, whether it is an ad-interim order or order confirmed or finalized after hearing the other side, both the orders would be appeal able by the aggrieved person to these specified authorities. There is no exclusion of the ad-interim orders passed by the relevant revenue court under Section 212 of the Act of 1955, taking them out of the scope of appellate provision in the Act. There is no exclusion of the ad-interim orders passed by the relevant revenue court under Section 212 of the Act of 1955, taking them out of the scope of appellate provision in the Act. Even though for arguments' sake, the word 'final' used in the first part of Section 225 (1) of the Act of 1955 was to be read along-with the word "from such other orders as are mentioned in Section 212 of this Act", though the Legislature has not done so, this Court is of the opinion that any order appointing the Receiver on the agricultural land by the revenue court is undoubtedly appeal able to the higher authorities specified in these provisions. 9. Therefore, this is beyond the pale of doubt that the order appointing the Receiver by the revenue court below is appeal able to the next higher authority or appellate forum available in the revenue law, namely, Rajasthan Tenancy Act, 1955. This being the conclusion of this Court, in view of well settled legal position, that if an alternative, adequate and efficacious remedy is available to the petitioner, the writ jurisdiction under Article 226 of the Constitution of India cannot be invoked. Though it is not a bar of jurisdiction of this Court under Article 226 of the Constitution of India, but is a rule of discretion while exercising the extra ordinary jurisdiction under Article 226 of the Constitution of India. Therefore, in the available facts and circumstances obtaining in the present case, this Court finds no exceptional circumstances to invoke the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. 10. The mere fact that the impugned order dated 14.08.2013 passed by the learned S.D.O., Nokha, prior the date fixed by which while registering the suit on 08.08.2013 i.e. on 05.09.2013, which date has again been referred to in the impugned order dated 14.08.2013 and an ex-parte order is apparently passed against the petitioner/defendant, it may only be a ground to assail the validity of that order available to the petitioner/defendant before the appellate authority. Be that as it may, mere availability of such a ground is not sufficient ground to invoke the extra ordinary jurisdiction of this Court straight away against such order. 11. This Court also finds little force in the contention of the learned counsel for the petitioner/defendant, Mr. Be that as it may, mere availability of such a ground is not sufficient ground to invoke the extra ordinary jurisdiction of this Court straight away against such order. 11. This Court also finds little force in the contention of the learned counsel for the petitioner/defendant, Mr. Moti Singh, that the impugned order dated 14.08.2013 is not a 'final order' passed on the application filed by the plaintiff/respondent No.3 for appointment of Receiver under Section 212 of the Act of 1955. Once, the Receiver is appointed on the application, the application stands disposed of for all practical purposes and fixation of the next date 05.09.2013 by the impugned order dated 14.08.2013, was only to specify the date in the main case file i.e. 05.09.2013 already fixed by the revenue court below of S.D.O., Nokha, on 08.08.2013. 12. The contents of the said order passed by the learned S.D.O., Nokha on 14.08.2013 as such does not even require any affirmation or confirmation by the same Court after hearing the opposite party. The defendant/petitioner once served with the summons of the revenue suit, was entitled to apply for re-call of the said order appointing the Receiver but that does not make this order anything less than the final order on the application under Section 212 of the Act of 1955. The order dated 14.08.2013 does not stipulate that the said order is passed only subject to confirmation upon the defendant being served and subject to his objections. On the contrary, for the reasons given in the application after the appointment of the Receiver, the word used are ^^ vkns'k tkjh fd;s tkosaA i=koyh eqdjZj is'kh fnukad 5-9-2013 dks is'k gksA ** Therefore, the tenor and the body of the said order dated 14.08.2013 does not leave anything to be done on the said application under Section 212 of the Act of 1955 by the learned S.D.O., Nokha and it stood disposed of on 14.08.2013. Therefore, firstly, any order passed on application under Section 212 of the Act of 1955 whether final or ad-interim, is found to be appealable under Section 225 of the Act of 1955, and secondly, the impugned order dated 14.08.2013 itself is found to be a final order u/s 212 of the Act, which is admitedly an appealable order u/s 225 of the Act of 1955. It is also appropriate to refer and rely upon the Supreme Court decision in the case of A. Venkatasubbiah Naidu v. S. Challappan & Ors., in which, the Hon'ble Apex Court in paras 10, 17 and 18 held as under:- "10. It cannot be contended that the power to pass interim ex-parte orders of injunction does not emanate from the said Rule. In fact, the said rule is the repository of the power to grant order of temporary injunction with or without notice, interim or temporary, or till further orders or till the disposal of the suit. Hence, any order passed in exercise of the aforesaid powers in Rule 1 would be appeal able as indicated in Order 43, Rule 1 of the Code. The choice is for the party affected by th order either to move the appellate court or to approach the same court which passed the ex parte order for any relief. 17. It is the acknowledged position of law that no party can be forced to suffer for the inaction of the court or its omissions to act according to the procedure established by law. Under the normal circumstances the aggrieved party can prefer an appeal only against an order passed under Rule 1, 2, 2A, 4 or 10 of Order 39 of the Code in terms of Order 43, Rule 1 of the Code. He cannot approach the appellate or revisional court during the pendency of the application for grant or vacation of temporary injunction. In such circumstances the party who does not get justice due to the inaction of the court in following the mandate of law must have a remedy. So we are of the view that in a case where the mandate of Order 39, Rule 3A of the Code is flouted, the aggrieved party, shall be entitled to the right of appeal notwithstanding the pendency of the application for grant or vacation of a temporary injunction, against the order remaining in force. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take notice of the omission of the subordinate court in complying with the provisions of Rule 3A. In such appeal, if preferred, the appellate court shall be obliged to entertain the appeal and further to take notice of the omission of the subordinate court in complying with the provisions of Rule 3A. In appropriate cases the appellate court, apart from granting or vacating or modifying the order of such injunction, may suggest suitable action against the erring judicial officer, including recommendation to take steps for making adverse entry in his ACRs. Failure to decide the application or vacate the ex-parte temporary injunction shall, for the purposes of the appeal, be deemed to be the final order passed in the application for temporary injunction, on the date of expiry of thirty days mentioned in the Rule. 18. Now what remains is the question whether the High Court should have entertained the petitioner under Article 227 of the Constitution when the party had two other alternative remedies. Though no hurdle can be put against the exercise of the constitutional powers of the High Court, it is well recognized principle which gained judicial recognition that the High Court should direct the party to avail himself of such remedies one or the other before he resorts to a constitutional remedy. Learned single judge need not have entertained the revision petition at all and the party affected by the interim ex-parte order should have been directed to resort to one of the other remedies. Be that as it may, now it is idle to embark on that aspect as the High Court had chosen to entertain the revision petition." Thus, it is clear that even against the ad-interim orders on temporary injunction application under Order 39, Rule 1 CPC or even inaction to decide application for vacating them an appeal would was maintainable under Order 43, Rule 1 CPC by the Hon'ble Supreme Court. 13. Therefore, viewed from any angle, an adequate and efficacious alternative remedy is available to the present petitioner/defendant by way of appeal to the Revenue Appellate Authority since the order impugned dated 14.08.2013 has been passed by the learned Assistant Collector (S.D.O., Nokha) in the present case. The writ petition is, therefore, liable to be dismissed on the ground of availability of adequate and efficacious alternative remedy to the petitioner. 14. The writ petition is, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties and the Revenue court below forthwith.Petition dismissed.