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Rajasthan High Court · body

2016 DIGILAW 965 (RAJ)

Ugam Singh v. Sagat Singh

2016-07-08

GOVIND MATHUR, PANKAJ BHANDARI

body2016
JUDGMENT This appeal is preferred questioning correctness of the order dated 11.01.2016 passed by the learned Board of Revenue dated 04.03.2015. 2. Briefly stated facts of the case are that the appellants-petitioners preferred a suit as per provisions of Section 88 of the Rajasthan Tenancy Act, 1955. The suit was decreed ex-parte by the judgment dated 30.06.1994 passed by the SDO, Banner. The respondents preferred an application under Order 9, Rule 13 of the Code of Civil Procedure and Order 1, Rule 10 of the Code of Civil Procedure before the SDO, but the same came to be rejected vide order dated 18.12.2001. Questioning the correctness of the order passed by the SDO, the respondents-applicants preferred an appeal before the Revenue Appellate Authority, which also came to be rejected. Being aggrieved of the same, a revision petition was preferred before the learned Board of Revenue, which came to be accepted under the order dated 04.03.2015. The learned Board of Revenue held that no notice was published in daily newspaper, and therefore, the service could not have been treated as sufficient. Being aggrieved of the order passed by the learned Board of Revenue, the appellants preferred a petition for writ, that came to be dismissed by the judgment impugned. 3. The learned Single Bench, while dismissing the writ petition, noticed that the SDO registered the suit on 24.01.1987 and ordered to issue notice to the respondents. Subsequent thereto, ex-parte proceedings were initiated by indicating that despite service, no one appeared on behalf of the defendants No.1 to 6. On the same date i.e. 03.06.1987, an application was preferred by the appellants-petitioners under Order 1, Rule 8 of the Code of Civil Procedure to get the notice published in newspaper "Dhora Dharti". The substituted service was treated as a valid service by the SDO. The learned Single Bench, after noticing this factual background, observed that once the matter was set ex-parte qua defendants No. 1 to 6, the SDO could not have issued the notice under Order 1, Rule 8 of the Code of Civil Procedure on the presumption that the persons set ex-parte would be representing large number of defendants in representative capacity. The learned Single Bench, after noticing this factual background, observed that once the matter was set ex-parte qua defendants No. 1 to 6, the SDO could not have issued the notice under Order 1, Rule 8 of the Code of Civil Procedure on the presumption that the persons set ex-parte would be representing large number of defendants in representative capacity. Besides the above, the notice was required to be published in daily newspapers, as ordered by the SDO, but the same was published only in a weekly newspaper in gross violation of the directions and provisions of Order 5, Rule 20 of the Code of Civil Procedure. 4. In appeal, the argument advanced by the learned counsel is that no application to set aside the ex-parte decree could have been preferred by the respondents-applicants being not defendants to the suit. We are of the considered opinion that this argument is not available to the appellants-petitioners being not raised either before the learned Board of Revenue or before the learned Single Bench. The order passed by the learned Single Bench, in no manner, suffers from any error that may warrant interference in the appellate jurisdiction. 5. The appeal is therefore, dismissed.