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2015 DIGILAW 1615 (RAJ)

Bhanwari v. Board of Revenue Rajasthan

2015-09-02

SANGEET LODHA

body2015
ORDER : 1. This petition is directed against order dated 14.5.2014 of the Board of Revenue Rajasthan, Ajmer, whereby a revision petition preferred by the fourth respondent herein, against the order dated 11.9.2013 of Sub Divisional Officer (SDO), Churu, setting aside the ex parte decree dated 16.12.1997 passed in Revenue Suit No. 256 of 1997, has been allowed. 2. The relevant facts are that Gula was the khatedar tenant of land ad measuring 49 bighas 5 biswas comprising khasra No. 115 (new khasra No. 983, land measuring 31 bighas 15 biswas), situated at Churu. Gula was survived by two sons namely, Husain and Nabu and thus, Husain had ½ share in the land in question. Husain had three sons namely, Yasin, Saddiq and Hanif. Hanif having no issue, died intestate. Yasin s/o Husain filed a suit for declaration, permanent injunction and correction of record while impleading inter alia Sadiq as party defendant with the averments that as per settlement between the brothers, Sadiq while relinquishing his share in the land in question, kept the land and house situated at Sardarsahar in his share. The land in question was recorded in the name of Department of Custodian, Government of India and therefore, the plaintiff-Yasin claiming exclusive possession over 15 bighas and 17½ biswas land comprising khasra No. 983, sought declaration of his khatedari rights and prayed for correction of entries in the revenue record, alleged to have wrongly recorded in favour of Department of Custodian. 3. In the suit filed, the defendant No. 4-Sadiq did not put in appearance despite service and therefore, he was proceeded ex-parte. After due consideration of the evidence on record, the suit was decreed by the trial court as prayed for, vide judgment and decree dated 16.12.1997. 4. After a lapse of about 13 years, Smt. Bhanwari, widow of Abdul Sattar s/o Sadiq (since deceased), her sons Iqbal, Mumtaz and Jakir and daughters Munni and Razia, as legal heirs of Sadiq, filed an application under Order IX Rule 13 CPC accompanied by an application under Section 5 of Limitation Act, 1953, seeking setting aside of the ex parte decree, stating that Sadiq had expired on 28.3.1996 and his wife Smt. Umrav had expired on 7.5.2001 and thus, the decree passed against a dead person without impleading his legal representatives as party defendants, is nullity in the eyes of law. That apart, it was averred that Sadiq was never served with the summon issued by the court and therefore, the ex parte proceedings ordered against him vide order dated 22.8.1991 also deserves to be set aside. 5. In the application filed seeking condonation of delay in filing the application for setting aside the ex-parte decree, it was averred by the petitioners herein that they had no knowledge about the filing of the suit and the decree being passed therein and they have come to know about the same only when they approached the Patwari, Halka Town Churu, for the purpose of obtaining Kisan Credit Card against the land from the bank, who informed them that the name of Sadiq already stands deleted from the revenue record pursuant to the decree passed by the court. 6. The application was contested by the fourth respondent-Babu s/o Yasin, by filing a reply thereto. 7. After due consideration of the rival submissions, the trial court arrived at the finding that the service of summon upon Sadiq appears to be suspicious. The court observed that Yasin being brother of Sadiq, had knowledge about his death yet, the legal representatives of Sadiq were not brought on record and the suit was decreed ex parte against the dead person, which is not justified. The court observed that in the ancestral land, Sadiq had equal share and therefore, without giving him an opportunity of hearing, his share could not have been treated as relinquished. Accordingly, while allowing the application preferred under Order IX Rule 13 CPC preferred by the petitioners herein, the ex-parte judgment and decree was set aside by the trial court vide order dated 11.9.2013. 8. Aggrieved thereby, the petitioners herein preferred a revision petition before the Board of Revenue Rajasthan, under Section 230 of Rajasthan Tenancy Act, 1955. The Board of Revenue arrived at the finding that the summon was duly served upon Sadiq. The Board observed that the respondents herein have not explained the reasons for non participation of Sadiq in the proceedings of suit despite service. The Board observed that Sadiq having failed to appear before the court despite service, it was open for the court to exempt the plaintiff from the obligation to bring the legal representatives of Sadiq on record. The Board observed that the respondents herein have not explained the reasons for non participation of Sadiq in the proceedings of suit despite service. The Board observed that Sadiq having failed to appear before the court despite service, it was open for the court to exempt the plaintiff from the obligation to bring the legal representatives of Sadiq on record. The explanation furnished by the petitioners herein for inordinate delay in filing the application seeking setting aside of the ex parte decree was also not found plausible and acceptable by the Board. Accordingly, the order dated 11.9.2013 passed by the SDO, allowing the applications preferred under Order IX Rule 13 CPC and Section 5 of Limitation Act, 1953, stand set aside by the Board, vide order impugned. Hence, this petition. 9. Learned counsel for the petitioners contended that notice issued by the trial court was never served upon Sadiq. Drawing the attention of this court to the order sheets of the trial court, learned counsel submitted that on 3.4.1991, the plaintiff was directed to file process fee and summons for service upon respondent No. 4. Summon for the date of hearing 8.5.1991 was issued for service upon Sadiq on 4.4.1991, however, as per order sheet dated 8.5.1991, the summon was not received served or unserved and therefore, awaiting the service of summon, the matter was adjourned. Thereafter, on 24.7.1991, noticing the fact that the summon is received unserved, fresh summon was directed to be issued to Sadiq, the defendant No. 4 therein. Learned counsel submitted that the summon issued for the date of hearing 8.5.1991 bears last report of process server in terms that the date of hearing has passed, however, prior to it two reports were made in terms that the addressee resides at Derajsar. Learned counsel would submit that in the fresh summon filed for the date of hearing 22.8.1991, the plaintiff on his own without there being any order of the court, filed the summons to be served upon Sadiq disclosing his address of Derajsar and on the basis of the report of the process server, notice was treated to be served upon Sadiq. It is submitted that the notice bears the signature of Sadiq whereas Sadiq was illiterate and used to affix his thumb impression. It is submitted that the notice bears the signature of Sadiq whereas Sadiq was illiterate and used to affix his thumb impression. Learned counsel submitted that the respondent attempted to show that at the relevant time, Sadiq was employed at the construction site of Tokhram whereas as per statements of Tokhram recorded before the Sub Divisional Officer, Churu in the proceedings under Order IX Rule 13 CPC, the land in question on which the construction of house is alleged to have been undertaken, was purchased by him in the year 1995 and thus, the question of Sadiq being employed there as construction worker at the relevant time in the year 1991, does not arise. Learned counsel would submit that even otherwise, without there being an order of the court or the change of the registered address on record, the plaintiff on his own could not have filed the summons disclosing Sadiq to be resident of village-Derajsar. Learned counsel submitted that the Sub Divisional Officer, Churu, after due examination of the evidence on record arrived at a categorical finding that the service upon defendant-Sadiq is found to be suspicious and therefore, there was no occasion for the Board to interfere with the finding arrived at after appreciation of evidence on record. Learned counsel submitted that the Board has seriously erred in observing that keeping in view the report of the process server available on record, the plaintiff was justified in filing the summon for service upon defendant-Sadiq on the address of Derajsar. Learned counsel submitted that ignoring the cogent evidence on record, suggesting that the summon was not duly served upon Sadiq, the finding arrived at by the Board that the summon appears to have been duly served upon Sadiq is ex facie erroneous. Learned counsel submitted that the evidence brought on record on behalf of the petitioners showing that Sadiq used to affix his thumb impression has been discarded by the Board by merely recording its ipse dixit. Learned counsel would submit that summon having not been duly served upon, the decree passed was liable to be set aside on this count alone. 10. Learned counsel next contended that admittedly, Sadiq had expired in the year 1996 and the plaintiff being brother of Sadiq was well aware about the factum of death yet, no attempt was made by the plaintiff to bring the legal representative of deceased-Sadiq on record. 10. Learned counsel next contended that admittedly, Sadiq had expired in the year 1996 and the plaintiff being brother of Sadiq was well aware about the factum of death yet, no attempt was made by the plaintiff to bring the legal representative of deceased-Sadiq on record. Learned counsel submitted that as a matter of fact that the plaintiff's knowledge about the factum of death is not even in dispute and thus, on account of failure on the part of the plaintiff to bring the legal representatives of defendant-Sadiq on record, the suit stood abated and was required to be disposed of accordingly. Learned counsel submitted that the decree passed by the trial court against the dead person is nullity in the eyes of law and therefore, taking into consideration this aspect of the matter, the SDO, Churu had committed no error in setting aside the decree. In support of the contention, learned counsel has relied upon a Bench decision of this court in the matter of L.Rs. of Narain Singh vs. State of Rajasthan and Others, Civil Special Appeal No. 171 of 2011, decided on 7.2.2011. Learned counsel submitted that the condonation of delay is a matter of discretion of the court and thus, taking into consideration the totality of the facts and circumstances of the case, the discretion exercised by the trial court in condoning the delay was not required to be interfered with by the Board of Revenue. In support of the contention learned counsel has relied upon a decision of Hon'ble Supreme Court in the matter of N. Balakrishnan vs. M. Krishnamurthy, 1998 DNJ (SC) 363. 11. On the other hand, counsel appearing for the respondent No. 4 & 5 submitted that the matter was proceeded ex-parte against defendant-Sadiq on 22.8.1991 and admittedly, he expired in the year 1996 and therefore, in the intervening period, nothing prevented Sadiq from making an application for setting aside the proceedings ex parte. Learned counsel would submit that despite service, deceased-defendant Sadiq did not put in appearance before the trial court for contesting the suit and therefore, by virtue of provisions of Order XXII Rule 4(4) CPC, it was not necessary to substitute his legal representatives on his death. Learned counsel would submit that despite service, deceased-defendant Sadiq did not put in appearance before the trial court for contesting the suit and therefore, by virtue of provisions of Order XXII Rule 4(4) CPC, it was not necessary to substitute his legal representatives on his death. Learned counsel submitted that Sadiq having failed to appear before the court despite service and the order proceeding ex parte having been passed against him, notwithstanding his death, the judgment pronounced shall have effect as if it has been pronounced before death took place. In this regard, learned counsel has relied upon a decision of this court in Badamilal vs. Harshvardhan, AIR 1994 (Raj.) 9 . Learned counsel submitted that the burden to prove that the service was not duly effected upon defendant-Sadiq was upon the petitioners. Learned counsel submitted that the petitioners cannot claim any personal knowledge about the service being not duly effected upon defendant-Sadiq and therefore, in absence of any contrary evidence on record, the finding arrived at by the SDO, Churu that the service of summon upon defendant-Sadiq appears to be suspicious was absolutely capricious and perverse and therefore, the same has rightly been interfered with by the Board. Learned counsel submitted that nothing prevented the petitioners from making a prayer to the court to summon the process server for examination as witness. Learned counsel would submit that the petitioners having failed to produce best evidence available, cannot be permitted to question the correctness of the report made by the process server, which being an official act is presumed to be performed in ordinary course of business. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in the matter of Mahabir Singh vs. Subhash and Others, (2008) 1 SCC 358 . Learned counsel submitted that a perusal of the statements of Iqbal and Mustaq Ali examined as witnesses on behalf of the petitioners before the trial court reveal that they are not even aware about the neighborhood of the agriculture land in question. Learned counsel submitted that it cannot be believed that the petitioners claiming ½ share in the land in question did not visit the agriculture field for 19 years. Learned counsel submitted that it cannot be believed that the petitioners claiming ½ share in the land in question did not visit the agriculture field for 19 years. Learned counsel submitted that the matter was proceeded ex parte against defendant-Sadiq in the year 1991 and the decree was passed by the court on 16.12.1997 and thus the application preferred for setting aside the ex-parte decree after a lapse of about 13 years, was hopelessly barred by limitation and there was no plausible explanation available on record regarding the inordinate delay in filing the application and therefore, the same was liable to be rejected as barred by limitation. In support of the contention, learned counsel has relied upon the decision of Hon'ble Supreme Court in the matter of Ram Karan (Dead) through Legal Representative and Others vs. State of Rajasthan and Others, (2014) 8 SCC 282 . 12. Replying the arguments of learned counsel appearing for the respondents, learned counsel for the petitioners contended that if the petitioners did not make a prayer for summoning the process server for examination as witness, it was the duty of the court to summon the process server as court witness to ascertain the truth and therefore, nothing turns on the question that process server was not examined. In support of the contention, learned counsel has relied upon a decision of this court in the matter of Chuki Devi and Others vs. Laxminarayan, 2010 (2) DNJ (Raj.) 718. Learned counsel submitted that by virtue of Second proviso to Order IX Rule 13, the ex parte decree cannot be set aside merely on the ground that there has been an irregularity in service of summon but then, for that purpose, the court must be satisfied that defendant had notice of the date of hearing and had sufficient time to appear and answer the claim. Learned counsel submitted that in the instant case, the service of notice upon defendant-Sadiq having been found suspicious, the question of defendant having any knowledge about the date of hearing, does not arise. Learned counsel submitted that in the instant case, the service of notice upon defendant-Sadiq having been found suspicious, the question of defendant having any knowledge about the date of hearing, does not arise. Learned counsel submitted that Order XXII Rule 4(4) has no application in the instant case inasmuch as, it is not even the case of the respondents that invoking the provisions of Order XXII Rule 4(4) any order was passed by the court at any stage of the proceedings before passing the decree exempting the plaintiff from the necessity of substituting the legal representatives of deceased Sadiq. 13. I have considered the rival submissions and perused the material on record. 14. Indisputably, in the first instance, the summons were issued by the court for service upon defendant-Sadiq on his address as disclosed by the plaintiff in the suit filed. It is true that in the summon dated 4.4.1991 issued by the trial court for the date of hearing 8.5.1991, the report was made by the process server to the effect that the addressee resides at Derajsar. But then, the endorsement made as aforesaid does not disclose as to who reported the process server that defendant-Sadiq does not reside at Sardarsahar. Be that as it may, despite the endorsement being made as aforesaid, the process server had finally reported that the notice could not be served on account of elections and the fresh date is required to be fixed. It is not even the case of the respondents that the factum of summon being not served upon defendant-Sadiq as reported by the process server, was brought to the notice of the court and/or any order was passed by the court in this regard directing the plaintiff to furnish the fresh address of defendant-Sadiq. It is not disputed before this court that the plaintiff on his own filed the summons disclosing therein Sadiq to be resident of village-Derajsar. It is to be noticed that the respondents attempted to show that Sadiq at the relevant time was residing at Derajsar inasmuch as, he was engaged in the work of raising construction of a house of Tokhram whereas, the documentary evidence show that the land was purchased by Tokhram on 20.6.1995 and 14.6.1996. It is to be noticed that the respondents attempted to show that Sadiq at the relevant time was residing at Derajsar inasmuch as, he was engaged in the work of raising construction of a house of Tokhram whereas, the documentary evidence show that the land was purchased by Tokhram on 20.6.1995 and 14.6.1996. Further, Tokhram, who was examined as witness on behalf of the respondents before the court, has categorically deposed that he had purchased the land on 20.6.1995 and 14.6.1996 and earlier he had no land in Derajsar and thus, the question of Sadiq being engaged at the construction site of Tokhram at the relevant time in the year 1991, does not arise. Moreover, the petitioners had produced documentary evidence on record showing that Sadiq used to affix his thumb impression and being illiterate, was not capable to sign. Thus, taking into consideration totality of the facts and circumstances of the case, in the considered opinion of this court, the finding arrived at by the SDO, Churu, expressing suspicion about the service being duly effected upon defendant-Sadiq cannot be said to be capricious or perverse warranting interference by the Board of Revenue in exercise of its revisional jurisdiction. 15. There cannot be any quarrel with the proposition that there exists a presumption that official act was done in ordinary course of business but then, such presumption is rebuttable and in view of the evidence on record, suggesting that the notice was not duly served upon the deceased Sadiq, the decision of Hon'ble Supreme Court in Mahabir Singh's case (supra) relied upon by counsel for the respondents, does not help the respondents. 16. Coming to the question of the decree passed against the dead person being nullity, admittedly, the plaintiff-Yasin who is brother of Sadiq, had participated in his brother's last rites and thus, was well aware about the factum of death yet, he did not choose to make an application before the trial court seeking leave to substitute the legal representatives of deceased Sadiq as party defendants in the suit. It is true that by virtue of provisions of Order XXII Rule 4(4), the court is empowered to exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant, who has failed to file a written statement or who having filed it, has failed to appear and contest the suit at the hearing; and the judgment may in such case be pronounced by the court against the said defendant notwithstanding the death of such defendant and shall have same force and effect as if it has been pronounced before death took place. Thus, undoubtedly, invoking the provisions of Order XXII Rule 4(4), the court can dispense with the substitution of the legal representatives of the deceased-defendant even without setting aside abatement at any stage of the proceedings before the pronouncement of the judgment. But then, such power must be exercised by the court before the pronouncement of the judgment and there cannot be any presumption regarding the exemption being granted by the court. It is not even the case of the respondents that invoking the power under Order XXII Rule 4(4), any such exemption was granted to the plaintiff by the court before the pronouncement of judgment. Moreover, a perusal of the order sheets drawn by the trial court make it abundantly clear that no such order granting exemption to the plaintiff from substitution of the legal heirs of the deceased-defendant Sadiq on record was ever passed. In this view of the matter, the contention sought to be raised by the petitioners in this regard, is absolutely devoid of any merit. In the considered opinion of this court, notwithstanding the ex parte proceedings taken, the plaintiff was under an obligation to bring the legal representatives of deceased Sadiq on record unless, the exemption in this regard was specifically granted by the court in terms of provisions of Order XXII Rule 4(4) CPC and thus, the decree passed by the trial court against the dead person has to be treated as nullity and was liable to be set aside for this reason alone. In view of the conclusion arrived at as aforesaid, the decision of this court in Badami Lal's case (supra), relied upon by the learned counsel for the respondents, also does not help the respondents in any manner. 17. In view of the conclusion arrived at as aforesaid, the decision of this court in Badami Lal's case (supra), relied upon by the learned counsel for the respondents, also does not help the respondents in any manner. 17. Lastly, coming to the question of limitation in filing the application seeking setting aside of the ex parte decree, it is to be noticed that the petitioners had pleaded that they had come to know about the passing of the decree only when they contacted the Patwari concerned for the purpose of obtaining the Kisan Credit Card against the land in question. Undoubtedly, the matter with regard to condonation of delay is discretion of the court. That apart, it is well settled that when the procedural technicalities and substantial justice are pitted against each other, the later has to be preferred over the former. Thus, taking into consideration the totality of the facts and circumstances of the case as discussed hereinabove, this court is of the opinion that the discretion exercised by the trial court in condoning the delay cannot be faulted with and the same was not required to be interfered with by the Board of Revenue in exercise of its revisional jurisdiction. 18. In view of discussion above, the petition succeeds, it is hereby allowed. The order impugned dated 14.5.2014 of the Board of Revenue Rajasthan, is set aside and the order dated 11.9.2013 of Sub Divisional Officer, Churu, setting aside the ex-parte decree is restored. No order as to costs. The record of the trial court may be sent back forthwith.