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2014 DIGILAW 874 (RAJ)

Hiralal v. Board of Revenue

2014-04-07

M.N.BHANDARI

body2014
ORDER : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 18.4.2013 passed by the Board of Revenue. Therein, the order dated 26.12.2002 passed by the SDO, Fetehpur was set aside. 2. Learned counsel for petitioner submits that a revenue suit was filed by the respondents under section 88 of the Rajasthan Tenancy Act for declaration of khatedari rights of the land in dispute. The SDO, Fatehpur issued notice on the address given therein. The notices returned un-served as the petitioners were not residing at the address, rather, shifted to Nichlaul, District - Maharajgang in Uttar Pradesh. After the aforesaid, one Mr Anil Mishra, Advocate appeared and filed 'Vakalatnama' on behalf of the petitioners without their knowledge and after getting their forged signatures. He then filed written statement which was also containing forged signatures of the petitioners. A forged family settlement was also prepared and filed in the court. The SDO court, relying on the forged family settlement so as the written statement, passed the order on agreed terms. 3. On 28.7.1998, petitioners could know about the judgment when they went to 'Halka Patwari' to get the 'Jamabandi'. Petitioners then filed an application under Order 9 Rule 13 of the Code of Civil Procedure to set aside the judgment. The reply to the application was submitted by the respondents and they also filed an application. The application moved by the petitioners was allowed by the SDO court vide order dated 26.12.2002, who then set aside the earlier order dated 28.7.1998. The respondents preferred revision petition before the Board of Revenue who set aside the order of the SDO. 4. It is stated that Board of Revenue set aside the order of the SDO mainly on the ground that the Advocate who filed the Vakalatnama was not examined. He had even submitted written statement before the trial court. It was also found that when the fraud of such nature is played, the parties should take recourse to the criminal proceedings or the court should also take cognizance thereof. It was in ignorance of the fact that signatures of the petitioners were seen by the SDO court and finding difference therein, the reasoned order was passed on 26.12.2002. 5. It was also found that when the fraud of such nature is played, the parties should take recourse to the criminal proceedings or the court should also take cognizance thereof. It was in ignorance of the fact that signatures of the petitioners were seen by the SDO court and finding difference therein, the reasoned order was passed on 26.12.2002. 5. Learned counsel for the respondents submits that it is not a case where ex parte judgment was given by the SDO court so as to maintain an application under Order 9 Rule 13 of the Code. In view of above, application submitted by the petitioners was not even competent yet the SDO court had accepted it. It is further stated that when the Vakalatnama was filed by the Advocate followed by written statement, there was no reason for the SDO court to disbelieve presence of the petitioners. In view of above, earlier order and decree should not have been recalled casually. It is only on the ground that the signatures of petitioners do not tally on the Vakalatnama and written statement with their original signatures. The court should not compare signatures or hand-writing of the parties. It should have been sent to the expert, however, in the instant case, SDO failed to do so, hence, the Board of Revenue has rightly set aside the order with the remand and direction to examine the Advocate who had appeared on behalf of the petitioners and filed Vakalatnama and the written statement. Accordingly, there is no illegality in the impugned order. 6. I have considered rival submissions of learned counsel for the parties and perused the record. 7. The perusal of the order dated 26.12.2002 at annexure-8 shows that notice on the suit was issued on 4.2.1998. The process server made a report that the defendants are not residing at the address given in the suit. The court fixed the matter for next date when Mr Anil Mishra, Advocate filed Vakalatnama followed by written statement on 21.4.1998. The court then passed final order in the suit. The petitioners filed application under Order 9 Rule 13 of the Code of Civil Procedure after knowing about the order. The court, thereafter, considered the case as to whether Vakalatnama and written statement contain signatures of the petitioners or not. The court then passed final order in the suit. The petitioners filed application under Order 9 Rule 13 of the Code of Civil Procedure after knowing about the order. The court, thereafter, considered the case as to whether Vakalatnama and written statement contain signatures of the petitioners or not. In that regard, reference of section 73 of the Evidence Act is given where the court is competent to compare the signatures or hand-writing of the parties. On minute examination of signatures, it was found that it does not tally, rather, difference exist, hence conclusion was drawn that petitioners never appeared in the case through Advocate and even written statement was not filed under their signatures. Accordingly, the application moved by the petitioners was allowed. 8. The first question is as to whether application under Order 9 Rule 13 of the Code was maintainable in this case or not? For ready reference, the provision aforesaid is quoted hereunder - "Order IX Appearance of Parties and Consequences of Non-Appearance 13. Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceedings with the suit: Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also: Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim. Explanation. Explanation. - Where there has been an appeal against a decree passed ex parte unde this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree." 9. The perusal of the aforesaid provision, no doubt, reveals that an application under Order 9 Rule 13 can be moved when the matter is proceeded ex parte. According to respondents-plaintiffs, it was not an ex parte order but an order and decree after hearing both the parties. I find that presence of both the parties has been recorded but it is without service of notice and in absence of authorised pleader, rather, the SDO court had come to the conclusion that petitioners never authorised Mr Anil Mishra to appear on their behalf and even to file written statement. 10. In view of above, presence of the petitioners cannot be said to exist and, in that circumstance, order and decree passed by the SDO court was nothing but in absence of the other party hence application under Order 9 Rule 13 of the Code was rightly entertained by the SDO Court. 11. The argument aforesaid was otherwise not a ground in the order passed by the Board of Revenue to set aside the order of the SDO court. Accordingly, first issue raised by learned counsel for the respondents cannot be accepted. 12. Further question is as to whether the court should not have compared the signatures, rather, it should have been sent for expert opinion? To appreciate the argument, section 73 of the Indian Evidence Act is relevant and reproduced here-asunder - "73.Comparison of signature, writing or seal with others admitted or proved.- In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person." 13. The perusal of the provision quoted above reveals that court can compare the signatures. It can be sent even for expert opinion. Thus, discretion lies with the court to take appropriate decision in the facts and circumstances of the case. 14. The respondents have referred a judgment of Hon'ble Apex Court in the case of "Ajar Kumar Parmar v. State of Rajasthan" [ 2012 (7) Supreme 83 ]. Therein, it was held that while making comparison of the hand-writing, the court itself become an expert and, therefore, it must refrain from playing the role of expert but absolute bar has not been imposed by the Hon'ble Apex Court in the aforesaid judgment and, otherwise, it cannot be because judgment of the Court cannot make a provision to be redundant though comparison of hand-writing or signatures should not be made by the court in all circumstances. If the facts of this case are looked into, then the decision of the SDO court is justified as signatures were comparable. 15. I further find it to be a case where on filing of the suit, notices were issued and instead of sending the notice through post, it was sent through process server. He made a report that none of the defendants are residing at the address given therein. Thus, knowledge of the issuance of the notice or filing of the suit cannot come to the defendants petitioners when they were not residing at the address given in the suit, rather, they were residing in the State of Uttar Pradesh. The aforesaid is one fact followed by the fact that only after 5 days, a Vakalatnama was filed by an Advocate on their behalf followed by written statement where virtually admissions were made and finally a family settlement deed. The signatures on the documents were compared and found difference therein. I find that if comparison of the signatures can be made easily by the court, then it is not necessary to sent it for expert opinion, otherwise no sanctity will remain to section 73 of the Evidence Act. The signatures on the documents were compared and found difference therein. I find that if comparison of the signatures can be made easily by the court, then it is not necessary to sent it for expert opinion, otherwise no sanctity will remain to section 73 of the Evidence Act. The expert opinion should be called where comparison of hand-writing and signatures by the court is difficult and a proper finding cannot be recorded. 16. If the plea taken by the respondents that in all cases an expert opinion should be taken then it would mean that even in a case where signatures are altogether different, then also, sending the matter to the expert would be nothing but an effort of the court to shirk from its responsibility as has been given under section 73 of the Evidence Act. 17. In the instant case, comparison of the signatures were made by the court where difference in the signatures was found. In such a case, I do not find any illegality if the comparison of the signatures was not sought from the expert. Accordingly, argument raised by learned counsel for the respondents cannot be accepted. 18. Lastly, the ground taken by the Board of Revenue to set aside the order of the SDO court. Therein presence of the Advocate felt necessary to decide the issue. I find that decision of the Board is without proper appreciation of the facts. The allegation of the petitioners is that the never engaged Advocate and, for that purpose, signatures were compared by the SDO court. In view of above, evidence of the Advocate therein was not so relevant because he will never say that Vakalatnama was filed after getting forged signatures so as the written statement. In fact, it will unnecessarily delay the matter. 19. The effort of the court should otherwise be to give fair and proper opportunity of hearing which would be missing if the application moved by the petitioners under Order 9 Rule 13 of the Code would not have been allowed. In fact, the order aforesaid was passed by the SDO court in the year 2002 itself. It is due to pendency of the revision petition, the suit could not proceed for last more than 12 years by now. 20. In fact, the order aforesaid was passed by the SDO court in the year 2002 itself. It is due to pendency of the revision petition, the suit could not proceed for last more than 12 years by now. 20. Accordingly and in view of the discussion made above, I find that the impugned order passed by the Board of Revenue cannot be allowed to sustain. It is accordingly set aside. The writ petition is allowed with the aforesaid. 21. In view of acceptance of writ petition, application for vacation of the interim order is dismissed. The stay application stands disposed of. Petition Allowed.