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Allahabad High Court · body

2016 DIGILAW 2647 (ALL)

Ram Autar v. Board of Revenue Allahabad

2016-08-01

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya),J. 1. Heard Sri Arvind Kumar Kushwaha for the petitioners and Sri Manu Singh as well as Sri Rajendra Kumar Yadav holding brief of Sri Pradeep Kumar Singh for the respondents. 2. Writ B No.35213 of 2016 has been filed against the order of Additional Commissioner dated 18.6.2015 allowing the appeal and setting aside ex parte decree dated 31.1.1981 as well as the order of Sub Divisional Officer dated 13.10.2014 rejecting the recall application of respondent-4, and the order of Board of Revenue dated 29.4.2016 passed in second appeal of the petitioners against the aforesaid order. Writ B No.35216 of 2016 emanates from the same impugned orders. Therefore, the facts stated in Writ B No.35213 of 2016, which are same, are dealt with in deciding these two writ petitions. 3. It is alleged that the petitioners filed a suit under Section 229-B of U.P. Act No.1 of 1951 for declaring them as bhumidhar with transferable right of plot no.619, area 2.07 acre of village Nagla Murli, majra Eta, pargana Etah Sakeet, tehsil and district Etah. The suit was decreed by the Sub Divisional Officer by order dated 31.1.1981. Thereafter on behalf of defendant-1 an application under order 9 Rule 13, CPC for setting aside the aforesaid decree was filed. In the affidavit filed in support of the application, it has been stated that summons of the suit were not served upon defendant-1 inasmuch as parentage of Sarvarakar of defendant-1 was also noted incorrectly. Fake service was effected upon him and the suit was decreed ex parte on 31.1.1981. The petitioners filed objection in the aforesaid application for setting aside ex parte decree. In the objection the petitioners had stated that summons were personally served on Sarvarakar of defendant-1 and thereafter he had also engaged two advocates. Later on he committed default as such suit was decreed by order dated 31.1.1981. The application for setting aside ex parte decree was heard by the Sub Divisional Officer, who by order dated 13.10.2014 held that decree was passed on 31.1.1981 while the application for setting aside ex parte decree was filed on 1.8.2013, thus, there was no reason for condoning the delay of 30-32 years in filing the application and there was no separate application for condonation of delay under Section 5 of the Limitation Act also. On this finding, he dismissed the application for setting aside the ex parte decree, by order dated 13.10.2014. Thereafter defendant-1 filed an appeal against the order dated 13.10.2014. The appeal was heard by Additional Commissioner, who by order dated 18.6.2015 held that summons were not personally served upon defendant-1. A perusal of the summons does not indicate that correct address was written in it of the noticee. The plaintiff himself signed as witness of service of summons. There was no independent witness of service of summons. Accordingly, it was held that service was not effected upon defendant-1 as such the decree was ex parte. So far as the delay condonation is concerned, he made observation citing judgments of this Court that liberal view ought to be taken in delay condonation but no specific order has been passed in this respect. He allowed the appeal by order dated 18.6.2015, set aside the orders of Sub Divisional Officer dated 31.1.1981 and 13.10.2014 and remanded the matter to Sub Divisional Officer to decide the suit afresh after hearing the parties. The petitioners challenged the aforesaid order in second appeal before the Board of Revenue, which has been dismissed by the Board of Revenue, U.P. by order dated 29.6.2016. Hence, this writ petition has been filed. 4. I have considered the arguments of the counsel for the parties. 5. The finding has been recorded by the Additional Commissioner that summons were not sent at proper address of defendant-1. The plaintiff himself signed as witness of service of summons and no independent witness signed on the summons. In such circumstances, finding has been recorded that service was not a personal service effected upon defendant-1. This finding of fact does not suffer from any illegality. 6. So far as the argument that defendant-1 had engaged counsel, namely, Brij Bihari Sharma on 2.8.1980 and later on he engaged counsel Sri Hari Shanker Gupta on 4.9.1980 is concerned, a perusal of the judgment of Sub Divisional Officer dated 31.1.1981 does not indicate engagement of any counsel by defendant-1. In this judgment Sub Divisional Officer has noted that in spite of service of summons, defendant-1 did not appear before this Court. It is only at the stage of objection in application under Order 9 Rule 13 CPC, the petitioners had begun to say that two counsels were engaged by defendant-1. In this judgment Sub Divisional Officer has noted that in spite of service of summons, defendant-1 did not appear before this Court. It is only at the stage of objection in application under Order 9 Rule 13 CPC, the petitioners had begun to say that two counsels were engaged by defendant-1. If two counsel were engaged by defendant-1, then there was no reason for Sub Divisional Officer to write that defendant-1 did not appear in spite of service of summons. To meet the aforesaid argument before this Court counsel for the petitioners produced a certified copy of the order sheet of the court below. A perusal of the order sheet shows that it was never signed by either Brij Bihari Sharma or Hari Shanker Gupta allegedly engaged by defendant-1 or by Om Prakash, Sarvarakar of defendant-1. Thus, their appearance before 31.1.1981 is not proved by order sheet also. 7. So far as the argument of the counsel for the petitioners that there was inordinate delay in filing the application under Order 9 Rule 13 C.P.C. inasmuch as the application was filed on 1.8.2013 for setting aside the order dated 31.1.1981 is concerned, under Article 123 of Limitation Act, 1963 limitation of 90 days has been proved from the date of the decree where summons or notice was duly served-when summons or notice was not duly served then 90 days from the date of knowledge of ex parte decree. In the present case a finding has been recorded by Additional Commissioner that summons was not personally served upon defendant-1. Therefore, application was within time from the date of knowledge, according to Article 123 of Limitation Act, 1963 and no delay condonation application was required to be filed. 8. The impugned orders do not suffer from any illegality. The writ petitions are dismissed.