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2016 DIGILAW 3394 (ALL)

Awadh Narayan v. State of U. P.

2016-10-04

RAM SURAT RAM (MAURYA)

body2016
JUDGMENT Ram Surat Ram (Maurya), J. Heard Sri V.K. Singh, Senior Advocate, assisted by Sri S. Shekhar for the petitioner. 2. This writ petition has been filed against the order of Commissioner dated 11.4.2016, allowing the revision and setting aside the order dated 28.8.2012, decreeing the suit u/s 229-B of U.P. Act No. 1 of 1951 and order dated 11.8.2015 rejecting the application under Order IX Rule 13 CPC, for setting aside the aforesaid decree and order of Board of Revenue, U.P. dated 29.6.2016, dismissing the revision of the petitioner against the aforesaid order. 3. The petitioner filed a suit u/s 229-B of U.P. Act No. 1 of 1951 for declaring him as bhumidhar with transferable right of old plot no. 850 (present plot no. 594), situated at village Bari Tappa Upraudh, pargana Kanit, tahsil Lalganj, district Mirzapur. It is alleged that the defendants avoided service, as such, the trial court has directed for publication of notices in the newspaper and in pursuance of the order of trial court, notices were published in newspaper on 16.6.2010 and thereafter, again the defendants did not appear before the court and did not contest the matter. The court therefore proceeded ex parte and after recording ex parte evidence, by order dated 28.8.2012, decreed the suit ex parte. 4. Thereafter, Kashi Ram and others (respondents-4 to 6) filed an application for setting aside the ex parte decree on 1.4.2013. In the restoration application, they have stated that they could not know about the pendency of the suit as well as order dated 28.8.2012 passed in it. It is only when they took extract of khatauni on 1.4.2013, then they could know about the ex parte decree and thereafter, the recall application has been filed. The trial court heard the recall application and after hearing, trial court by order dated 11.8.2015 found that notices were served through publication in newspaper. In spite of publication, defendants did not contest the case and thereafter, the case was proceeded ex parte and after recording ex parte evidence, it was decreed by order dated 28.8.2012.Defendants have not filed any application for condonation of delay in filing the restoration application, although, the restoration application was filed on 1.4.2013. Day to day delay in filing the restoration application has not been explained. On these findings, the restoration application was dismissed. Day to day delay in filing the restoration application has not been explained. On these findings, the restoration application was dismissed. Respondents challenged the aforesaid order in revision, which was heard by Commissioner, who by order dated 11.4.2016 found that there was no personal service of the summons issued by the trial court. Service was effected through publication, which is not due service. Suit was decreed ex parte, without giving opportunity of evidence to the defendants, therefore, ex parte decree was liable to be recalled. On these findings, he allowed the revision and set aside the orders dated 28.8.2012 and 11.8.2015 and restored the case to its original number. The petitioner challenged the aforesaid order in revision, which was dismissed by Board of Revenue, U.P. by order dated 29.6.2016. Hence, this writ petition has been filed. 5. I have considered the arguments of counsel for the petitioner and examined the record. So far as delay in filing the restoration application is concerned, Section 201 of U.P. Land Revenue Act, 1901, which is applicable in the matter, provides that if the judgment has been given against the defendant, then the limitation of 15 days will apply from the date of order being communicated to him or after any process for enforcing the judgment has been executed or at any earlier period. Admittedly, the order has not been communicated to the defendants. According to the defendants, it is only on 1.4.2013 when they took the extract of khatauni, then they could know about the order of trial court and on that very day, the recall application was filed. Thus, the recall application was filed within 15 days from the date of knowledge and according to Section 201 of U.P. Land Revenue Act, 1901, it is within time. The finding of trial court in this respect is not correct. 6. So far as publication of notices in newspaper is concerned, the explanation attached to Article 123 of Limitation Act, 1963 provides that for the purposes of this Article, substituted service under Rule 20 Order 5 CPC shall not be deemed to be due service in this case. Summons were served through publication as the summons could not be personally served. Thus, service through publication is a substituted service within the meaning of Article 123 of Limitation Act, 1963 and it is not a due service. Summons were served through publication as the summons could not be personally served. Thus, service through publication is a substituted service within the meaning of Article 123 of Limitation Act, 1963 and it is not a due service. When the defendants appear and deny that they could never know about the publication, then the presumption stood rebutted and the Commissioner has not committed any illegality in accepting the plea that the defendants could never know about the proceeding of the suit. 7. By the impugned order, ex parte decree has been set aside. The petitioner has liberty to contest the suit on merit. However, the suit is pending since 2008, as such, it is appropriate that the trial court may decide the suit, expeditiously, preferably within a period of six months from the date of producing a certified copy of this order before him, without granting any unnecessary adjournment to either of the parties. 8. With the aforesaid observations, the writ petition is disposed of.