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2016 DIGILAW 1085 (RAJ)

Daya v. Board of Revenue

2016-07-28

SANGEET LODHA

body2016
ORDER : Sangeet Lodha, J. This writ petition is directed against the order dated 7.11.94 passed by the Board of Revenue, Rajasthan, whereby revision petition preferred by the petitioners against the order dated 19.8.94 of Revenue Appellate Authority, Sirohi Camp-Jalore, dismissing the appeal preferred by the petitioners as barred by limitation, stands rejected. 2. The relevant facts are that the respondent No. 4 Chaina preferred a suit under Section 88 and 188 of the Rajasthan Tenancy Act, 1955 before the Sub-Divisional Officer, Jalore, against inter-alia the petitioners herein, in respect of agriculture land measuring 164 bighas and 19 biswas comprising Khasra No. 1053, 1052 and 1087 situated at Jalore. The petitioners did not appear despite service and therefore, the matter was proceeded ex-parte against them. The suit was decreed by the trial court vide judgment and decree dated 30.6.92. Aggrieved thereby, the petitioners herein preferred an appeal before the Revenue Appellate Authority, Sirohi Camp Jalore, accompanied by an application under Section 5 of the Limitation Act. The appeal against the order dated 30.6.92 was filed by the petitioners on 29.9.92. The limitation for filing an appeal being 60 days, the appeal was barred by limitation for 30 days. 3. The explanation set out by the petitioners seeking condonation of delay was that the summons were not served upon them and they came to know about the decree passed by the trial court on 23.8.92 when the plaintiff disclosed the factum of decree passed and the proceedings being taken for entry in the revenue record. The explanation furnished was not found acceptable by the Revenue Appellate Authority and accordingly, the appeal was dismissed as barred by limitation vide order dated 19.8.94. 4. Aggrieved by the appellate order, the petitioners preferred revision petition before the Board of Revenue which stands dismissed by the order impugned. Hence this petition. 5. Learned counsel appearing for the petitioners submitted that the stand taken by the petitioners explaining the delay in filing the appeal as set out in the application under Section 5 of the Limitation Act supported by an affidavit was not controverted by the respondent by filing a reply thereto. Learned counsel urged that the decree was passed against the petitioners ex-parte and therefore, obviously they were not aware about the decree passed. Learned counsel urged that the decree was passed against the petitioners ex-parte and therefore, obviously they were not aware about the decree passed. Learned counsel submitted that it was categorical stand of the petitioners that they came to know about the decree passed when the respondent Chaina disclosed this fact to them and thus, there was absolutely no justifiable reasons for not believing the stand taken by the petitioners. Learned counsel submitted that it is settled law that the matter with regard to condonation of delay needs to be considered by the Court liberally and therefore, on the facts and in the circumstances of the case, the Board of Revenue has seriously erred in dismissing the revision petition preferred by the petitioners questioning the legality of the order dated 19.8.94 passed by the Revenue Appellate Authority dismissing the appeal as barred by limitation. 6. I have considered the submissions of the learned counsel for the petitioners and perused the material on record. 7. Indisputably, the matter was proceeded ex-parte against the petitioners by the trial court. A perusal of the judgment of the trial court reveals that the defendant No. 4 Kesa, the respondent No. 5 herein, filed the written statement admitting the claim of the plaintiff and no written statement was filed on behalf of the State. The matter was decided on the basis of the evidence led by the plaintiff ex-parte. It is pertinent to note that the petitioners have taken a specific stand that they had come to know about the passing of the decree only from the plaintiff on 23.8.92. The specific stand taken by the petitioners was not controverted by the respondent plaintiff by filing counter affidavit supported by affidavit. The appeal was barred by limitation only for 30 days. It is true that day to day delay was not explained by the petitioners, but then, it is settled law that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred vide Collector Land Acquisition Anantnag and Another v. Mst. Katiji and Others, AIR 1987 SC 1353 . 8. In the considered opinion of this Court, on the facts and in the circumstances of the case discussed herein above, the Revenue Appellate Authority was not justified in declining to exercise the discretion in favour of the petitioners. Katiji and Others, AIR 1987 SC 1353 . 8. In the considered opinion of this Court, on the facts and in the circumstances of the case discussed herein above, the Revenue Appellate Authority was not justified in declining to exercise the discretion in favour of the petitioners. For the parity of reasons, the Board of Revenue has also erred in dismissing the revision petition preferred by the petitioners. 9. In the result, the writ petition succeeds, it is hereby allowed. The order impugned dated 7.11.94 of the Board of Revenue, Rajasthan and order dated 19.8.94 of the Revenue Appellate Authority, Sirohi Camp Jalore, are set aside. The application preferred by the petitioners before the Revenue Appellate Authority under Section 5 of the Limitation Act, seeking condonation of delay is allowed. The delay in filing the appeal is condoned. The appeal (No.86/93) shall stand restored to the files of the Revenue Appellate Authority, Sirohi for decision afresh on merits. No order as to costs.