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2018 DIGILAW 32 (RAJ)

Lehari Bai v. State of Rajasthan

2018-01-03

PUSHPENDRA SINGH BHATI

body2018
ORDER : Pushpendra Singh Bhati, J. 1. Petitioner has preferred this writ petition with the following prayer:- "1. By an appropriate writ, order or direction, this petition may kindly be allowed with costs and the impugned order dated 30.11.2017 qua allowing of the application under Order 9 Rule 7 of Civil Procedure Code may kindly be set aside and the application under Order 9 Rule 13 of Civil Procedure Code may kindly be rejected. 2. By an appropriate writ, order or directions, the record of the learned court below may be called for to make effective hearing for just and proper adjudication. 3. Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. 4. Costs of this writ petition may kindly be allowed to the petitioner." 2. Learned counsel for the petitioner has submitted that a suit for permanent injunction was filed regarding a plot measuring 2500 sq. fts. situated at Adarsh Nagar Road, Krishnapuri, Sirohi. The petitioner submitted an application for issuing the patta before Municipal Council but even after giving the patta, the respondents initiated the proceedings to dispossess the petitioner, upon which the petitioner approached the learned court below and filed the suit No. 19/2013. During the course of the proceedings, the respondent Nos. 2 and 3 agreed to issue patta in favour of the petitioner in the back of respondent no. 1 and such suit was accordingly allowed by way of compromise on 21.02.2015. On the basis of the compromise, the plot of the petitioner was regularized and pattas were issued on 13.01.2015 by the respondents Nos. 2 and 3 while depositing the charges of Rs. 1,42,253/- through appropriate receipt alongwith one time lease amount for 10 years. The appropriate revenue entries in Khasra No. 1218 were made, however, the Tehsildar, Sirohi issued a notice under Section 91 of the Rajasthan Land Revenue Act against the petitioner, which was registered as 37/2016 and order was passed on 29.02.2016 for dispossession of the petitioner from the said plot. The petitioner approached the learned Revenue Board, the learned Revenue Board passed the order dated 05.04.2016 setting aside the order of Tehsildar, Sirohi and remanding the matter back to the Tehsildar, Sirohi with the direction of re-hearing. 3. The petitioner approached the learned Revenue Board, the learned Revenue Board passed the order dated 05.04.2016 setting aside the order of Tehsildar, Sirohi and remanding the matter back to the Tehsildar, Sirohi with the direction of re-hearing. 3. The petitioner preferred the instant suit on account of such proceedings before the Tehsildar, whereby the notices were issued and the respondent nos. 1, 2 and 3 all appeared through their respective advocates. The matter was posted for written statement on 20.05.2016, however, the learned counsel for the respondents no. 1 did not appear on that date and therefore, ex-parte proceedings were initiated against the respondent No. 1, while the proceedings were continuing issues were framed and matter was posted for evidence of the petitioner on 06.12.2016. After recording the evidence of the petitioner and after a delay of 9 months on 20.02.2017, an application under Order 9 Rule 7 of the CPC was moved by which the ex-party proceedings were sought to be recalled. The matter was posted on 25.03.2017 when the application for Order 9 Rule 7 CPC was not pressed by the officers of the Municipal Council on account of the fact that a separate power has been given to proceed on behalf of the respondent No. 1 and he was no longer responsible for conducting the case on behalf of the respondent no. 1. 4. On 10.07.2017, the respondent No.1 submitted another application under Order 9 Rule 7 of the CPC taking the ground that the earlier officer in-charge did not appear and file the written statement, which resulted into initiation of ex-parte proceedings whereas the appropriate officer has been appointed and the order need to be recalled and heard on merits. The application under Order 9 Rule 7 of the CPC has been allowed vide order dated 30.11.2017 by the learned court below. 5. Learned counsel for the petitioner has stated that since an earlier application of Order 9 Rule 7 was already pending/decided, therefore, it was not open for the learned court below to have re-considered the issue. Learned counsel for the petitioner has also vehemently argued that once the matter had been proceeded ex-parte and the respondent no. 5. Learned counsel for the petitioner has stated that since an earlier application of Order 9 Rule 7 was already pending/decided, therefore, it was not open for the learned court below to have re-considered the issue. Learned counsel for the petitioner has also vehemently argued that once the matter had been proceeded ex-parte and the respondent no. 1 due to the carelessness did not choose to file any application under Order 9 Rule 7 of the CPC for a prolonged period of one and a half year then it was not open for the respondents no. 1 to seek the remedy of Order 9 Rule 7 of CPC. Learned counsel for the petitioner has also pointed out that the officers were very well there and Government Advocates are very well there when the proceedings were being initiated ex-parte and in the garb of Order 9 Rule 7 of the CPC, respondent no. 1 cannot be permitted to make pleading one after another so as to cause unnecessary delay and create hassle in the ongoing proceedings. 6. On perusing the record as well as impugned order, this Court is of the opinion that learned court below has rightly been lenient on the application under Order 9 Rule 7 for a default by a Government Officer while acting as an officer in-charge. Learned Court could not have permitted an improper adjudication and improper ex-party adjudication of property rights particularly when there is an alleged encroachment by the petitioner on the said property. In the interest of justice, it is necessary that all parties are heard and are given equal opportunity to represent themselves and on a bare reading of Order 9 Rule 7 of CPC, it is clear that the Court has been given ample powers to permit the defendant to be heard in answer to the suit. The stand of respondent No. 1 is apparently very crucial in the present adjudication. Without prejudice to the either of the parties, this Court simply upholds the impugned order, which is reasonable as it only gives an opportunity to the State to represent itself during the course of the adjudication. 7. The writ petition is accordingly dismissed. The stand of respondent No. 1 is apparently very crucial in the present adjudication. Without prejudice to the either of the parties, this Court simply upholds the impugned order, which is reasonable as it only gives an opportunity to the State to represent itself during the course of the adjudication. 7. The writ petition is accordingly dismissed. However, since the invocation of Order 9 Rule 7 of the CPC, after a delay of one and a half year shall be harsh upon the petitioner, therefore, the respondents are required to pay a cost of Rs. 5,000/- to be paid personally by the officer in-charge for not filing the written statement in time. The cost paid by such officer shall be released to the petitioner as litigation expenses. The department of the erring officer in-charge shall be free to initiate departmental proceedings for his demeanor of not adhering to his official duty.