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2019 DIGILAW 2668 (RAJ)

Rebecca Expo Investment Co. Pvt. Ltd. v. Nathulal

2019-10-14

ASHOK KUMAR GAUR

body2019
JUDGMENT : Ashok Kumar Gaur, J. 1. The instant writ petition has been filed by the petitioner-defendant No. 5 challenging the order dt. 11.09.2019 passed by the Board of Revenue, whereby revision petition of the petitioner against the order dt. 17.01.2019 passed by the Revenue Appellate Authority, Jaipur, has been dismissed. 2. Mr. R.K. Agrawal, Sr. Adv. submitted that the SDO-I, Jaipur vide its order dt. 05.08.2016 decided the temporary injunction application filed under Section 212 of the Rajasthan Tenancy Act, 1955 read with Order 39 Rule 1 & 2 CPC. Counsel submitted that the said order was passed behind the back of the petitioner- company and as such the petitioner-company had filed an appeal before the Revenue Appellate Authority (in short "RAA") and the appeal came to be dismissed vide order dt. 17.01.2019 by the RAA and the delay in filing appeal was not condoned while deciding the application, filed under Section 5 of the Limitation Act. 3. Learned Sr. Adv. submitted that the petitioner-company had filed revision petition before the Board of Revenue and the Board of Revenue on 08.07.2019 admitted the revision petition for hearing and also found that the delay was properly explained by the petitioner-company while filing the appeal before the RAA against the order of the SDO-I, Jaipur dt. 05.08.2016. 4. Learned Sr. Adv. for the petitioner submitted that the Board of Revenue vide impugned order dt 11.09.2019 has taken a U-Turn and has recorded finding that the delay in filing appeal before the RAA was not satisfactorily explained and as such the order of the RAA, rejecting the appeal of the petitioner, has been maintained. 5. Learned Sr. Adv. for the petitioner-company submitted that the ex-parte proceedings were drawn against the petitioner- company on the same day i.e. 05.08.2016 in the main suit and on an application filed under Order 9 Rule 7, the SDO-I, Jaipur allowed the said application vide its order dt. 20.08.2019. Learned Sr. Adv. for the petitioner submitted that the order of setting aside the ex-parte proceedings were challenged before the Board of Revenue by the respondents and the revision petition of the respondents has been dismissed by the Board of Revenue on 23.09.2019 and order of the SDO of setting aside the ex-parte proceedings, have been maintained. 6. Learned Sr. Adv. Adv. for the petitioner submitted that the order of setting aside the ex-parte proceedings were challenged before the Board of Revenue by the respondents and the revision petition of the respondents has been dismissed by the Board of Revenue on 23.09.2019 and order of the SDO of setting aside the ex-parte proceedings, have been maintained. 6. Learned Sr. Adv. for the petitioner-company submitted that once the ex-parte proceedings against the petitioner-company, were set aside as necessarily corollary all proceedings are revived and the petitioner-company has been able to prove satisfactorily the delay, which was alleged for filing either restoration application or for hearing on the temporary injunction, which was granted in absence of the petitioner-company. 7. Learned Sr. Adv. for the petitioner-company also submitted that one member of the Board of Revenue had considered the issue of delay while admitting the revision petition vide its order dt. 08.07.2019 and as such the Board of Revenue-another member while hearing the revision petition could not have taken a different view of rejecting the revision petition of the petitioner-company, on the ground of delay not being properly explained. 8. Learned Sr. Adv. for the petitioner-company submitted that the Board of Revenue or its members has to function by maintaining the judicial discipline and further if two inconsistent orders are passed on same facts by different members, the same may lead to very anomalous situation and the parties would not be able to get justice as per law. 9. Learned Sr. Adv. further submitted that steps which were taken to effect service on the petitioner-company in the suit as well as in the temporary injunction application, was not proper procedure, as no efforts were made to effect service on the petitioner-company by personal mode and in a very unusual manner, the notices were found to be served by way of substituted service by publication of the news items in a local newspaper which had no vide circulation. 10. Learned Sr. Adv. for the petitioner-company further submitted that the petitioner-company has purchased the property way-back in 2004 and the required permission has also been obtained from the Municipal Corporation for getting the land converted for commercial purposes. 11. Learned Sr. Adv. 10. Learned Sr. Adv. for the petitioner-company further submitted that the petitioner-company has purchased the property way-back in 2004 and the required permission has also been obtained from the Municipal Corporation for getting the land converted for commercial purposes. 11. Learned Sr. Adv. for the petitioner-company submitted that the Board of Revenue has committed illegality in rejecting the revision petition of the petitioner-company and as such interference is required by this Court to set aside the order passed by the Board of Revenue as well as RAA and the SDO. 12. Per contra, Mr. Himanshu Sogani, counsel appearing for the respondents has submitted that this Court is not required to interfere in the order passed by the Board of Revenue while deciding the revision petition of the petitioner-company. Counsel submitted that the delay, which had been caused in preferring the appeal before the RAA, was not explained by the petitioner-company at all. 13. Counsel submitted that the order was passed on 05.08.2019 and prior to that ad-interim order was passed by the SDO on 18.04.2016. Counsel submitted that the notices were duly served on the petitioner-its representative and when the petitioner failed to appear before the court concerned, the substituted service was made and after proper publication in the daily newspaper of English edition i.e. Times of India, Delhi and Bangalore edition, the substituted service was found to be effected on the petitioner- company.' 14. Counsel further submitted that the petitioner-company has been making allegation that the possession was being disturbed by the respondents and they were well aware about facts of passing the order dt. 05.08.2016 and inspite of knowledge of the order, they choose to file appeal at belated stage somewhere in 2018 months i.e. about after two years and a false story was concocted of getting knowledge of ex-parte order after some note being put by the Tehsildar in the revenue record in respect of interim order passed. 15. Counsel further submitted that insufficiency of service cannot be a ground to set aside the order passed by the Court after taking into account the various measures being adopted for effecting service on a party concerned. Counsel further argued that the respondents has got right over the property and the same cannot be interfered by any person including the petitioner- company. 16. I have heard counsel for both the parties and perused the material available on record. 17. Counsel further argued that the respondents has got right over the property and the same cannot be interfered by any person including the petitioner- company. 16. I have heard counsel for both the parties and perused the material available on record. 17. This Court finds that the ex-parte proceedings in the main suit dt. 05.08.2016 has been set aside by the SDO vide its order dt. 20.08.2019 while allowing the application under Order 9 Rule 7 CPC filed by the petitioner. 18. This Court further finds that the revision petition filed by the respondent-Nathulal and others has been dismissed by the Board of Revenue vide order dt. 23.09.2019. The Board of Revenue has recorded its finding that the court below while allowing the application of the petitioner-company, setting aside the ex-parte proceedings, has not committed illegality and the principles of natural justice is violated as the petitioner-company was not given adequate opportunity to represent itself or participate in the proceedings. 19. This Court finds that the Board of Revenue while admitting the revision petition filed by the petitioner-company vide its order dt. 08.07.2019, had found that the delay was properly explained by the petitioner-company before the RAA and as such the delay was condoned vide order dt. 08.07.2019 and the matter was to be heard on the stay application. This Court further finds that the Board of Revenue while passing the impugned order dt. 11.09.2019 on the same facts has recorded the finding that the delay was not properly explained. 20. This Court finds that the Board of Revenue should have kept in mind the earlier order-sheets passed on 08.07.2019. At this stage Mr. Himanshu Sogani, counsel for the respondents submitted that initial order dt. 08.07.2019 was passed without having the complete record of the courts below and as such subsequent order dt. 11.09.2019 has been passed after summoning record and after considering the explanation given by the petitioner in causing delay in filing the appeal. 21. This Court holds that the order dt. 08.07.2019 had recorded a finding that there was sufficient reasons for not preferring the appeal before the RAA and as such delay was properly explained, the same facts being available with the Board of Revenue, the subsequent order dt. 11.09.2019 is not sustainable in the eye of law. 22. 21. This Court holds that the order dt. 08.07.2019 had recorded a finding that there was sufficient reasons for not preferring the appeal before the RAA and as such delay was properly explained, the same facts being available with the Board of Revenue, the subsequent order dt. 11.09.2019 is not sustainable in the eye of law. 22. This Court finds that the main suit itself has been now allowed to be contested by the petitioner-company, as ex-parte proceedings have been set aside and the said order of the SDO has been upheld by the Board of Revenue in revision petition filed by the respondents and as such it will be travesty of justice if the petitioner-company is denied to participate in the proceedings to contest the temporary injunction which has been granted behind their back. 23. This Court resultantly set aside the order dt 11.09.2019 passed by the Board of Revenue and the order dt. 17.01.2019 passed by the RAA, Jaipur. This Court further holds that the RAA while entertaining the appeal filed by the petitioner, will not take into account the delay which is alleged to be caused by the petitioner and the petitioner would be permitted to argue the matter on merits against the order dt. 05.08.2016 passed by the SDO. 24. The petitioner-company and the respondents are further free to file necessary documents/affidavits in their support. 25. Accordingly, the present writ petition stands disposed of.