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2017 DIGILAW 1694 (RAJ)

Dev Prakash @ Ved Prakash v. Mukesh Kumar

2017-07-31

M.N.BHANDARI

body2017
JUDGMENT : M.N. Bhandari, J. By this writ petition, a challenge is made to the order dated 14.07.2016, passed by the Board of Revenue, 04.10.2002 passed by the learned Revenue Appellate Authority and the judgment and decree dated 05.07.1984, passed by the Assistant Collector & District Magistrate, Bayana. 2. It is stated that in a suit preferred by the respondents, notice were issued but without its service, it was decreed. The petitioner was not residing at the place where notices were sent and it was reported by the Process Server yet "Chaspabandi" was made on the same date i.e. 23.02.1984. The court then proceeded ex-parte without taking notice that the petitioner has not been served. 3. The respondents are none else but brothers son, wife and daughter of late Shri Kishorilal (brother of petitioner) and were knowing that the petitioner is serving in the Employees State Insurance Department at Jaipur. The petitioner could not know about the decree immediately on its passing or within reasonable time. When he could know about it, immediately filed an appeal before the Revenue Appellate Authority along with application for condonation of delay. The reason of delay was given but without considering it properly, the application for condonation of delay as well as appeal was dismissed followed by dismissal of appeal by the Board of Revenue. All the courts ignored the fact that ex-parte decree was passed without service of notice to the petitioner thus could not come in the knowledge of the petitioner. In view of the above, all the orders deserve to be set aside. The reference of the judgment in the cases of Smt. Kamlesh Alias Kamla v. Mukesh Yadav reported in 2012 WLC (Raj.) UC 237, Smruti Pahariya v. Sanjay Pahariya reported in 2009(4) RLW 3070 (SC) and Ghisya (since deceased) represented by legal heirs v. Kailash Chand, SB Civil Writ Petition No. 9070/2009 decided on 04.03.2012 has been given, wherein, it has been held that the procedure of "Chaspabandi" can be applied only when notices are not accepted by the party. In the instant case, the petitioner did not refuse to accept the notice, rather, as per the remarks of the process server, the petitioner was not even available. In the light of the judgment referred above, service of notice on the petitioner could not have been accepted. The prayer is to set aside all the three orders. 4. In the instant case, the petitioner did not refuse to accept the notice, rather, as per the remarks of the process server, the petitioner was not even available. In the light of the judgment referred above, service of notice on the petitioner could not have been accepted. The prayer is to set aside all the three orders. 4. Learned counsel for the respondents have contested the writ petition. It is submitted that the petitioner was in service at Jaipur but was frequently coming to Weir (District Bharatpur). He was knowing about the litigation but did not participate therein deliberately. In view of the above and taking into consideration delay in maintaining the appeal before the Revenue Appellate Authority, the interference in the order may not be made. The writ petition may, accordingly, be dismissed. 5. I have considered submissions of the parties and perused the record. 6. It is a case where on filing of the suit by the respondents, notices were issued and sent for service on the petitioner. The petitioner was not available for service as is coming out from the remarks of the process server on 23.2.1984. He was said to have gone to Jaipur yet without denial, the "Chaspabandi" was made, that too, on the same day. It cannot be considered to be proper because procedure of "Chaspabandi" can be adopted when the party refused to accept the notice, which is not the case herein. 7. The view aforesaid is supported by the judgment of the Division Bench in the case of Smt. Kamlesh @ Kamla (supra) and also of Supreme Court in the case of Smruti Pahariya (supra). The Revenue Appellate Authority was expected to consider this aspect while considering the application for condonation of delay but it ignored. The application under Section 5 of the Limitation Act was dismissed on hyper-technical ground. It was in ignorance of the fact that when ex-parte decree has been passed in an illegal manner, knowledge of it cannot be presumed on the date of passing of the said decree. The Board of Revenue has also committed the same illegality while endorsing the order of the Revenue Appellate Authority. The way application under Section 5 of the Limitation Act has been dealt with by the Revenue Appellate Authority and Board of Revenue needs to be deprecated. The Board of Revenue has also committed the same illegality while endorsing the order of the Revenue Appellate Authority. The way application under Section 5 of the Limitation Act has been dealt with by the Revenue Appellate Authority and Board of Revenue needs to be deprecated. It is even by the ACM court, who did not apply the procedure required to try the revenue suit. It could have been without proper service of notice to the party concerned. 8. In view of the above, all the three orders impugned herein are set aside with remand of the case to the SDO Court to decide the suit afresh. The writ petition is allowed with the aforesaid. 9. The parties through their learned counsel are directed to appear before the SDO Court on 29.08.2017.