Bharta Ram vs State Of Rajasthan

This writ petition has been filed by the petitioner aggrieved against the orders dated 9.2.2010 (Annex.9) passed by the SDO, 30.1.2018 (Annex.11)

passed by the Board of Revenue, whereby, the application filed by respondent under Order IX Rule 13 CPC has been accepted and revision petition

filed by the petitioner has been rejected, respectively and order dated 1.10.2019 (Annex.13) passed by the Board of Revenue, whereby, the review

petition filed by the petitioner has also been rejected.

A suit was filed by the petitioner for partition. The service on the respondents was affected by way of affixation in presence of two witnesses, when

none appeared for the respondents, the SDO passed ex-parte preliminary decree. The Commissioner gave his report (Annex.3), based on which, the

final decree was passed on 26.6.2008. The respondents filed application under Order IX Rule 13 CPC seeking setting aside of the ex-parte decree.

During pendency of the said application, the petitioner in the first instance moved application under Order XIX Rule 1 & 2 CPC seeking production of

the process server and the two witnesses for cross-examination, however, the application was rejected. Whereafter, the petitioner filed reply to the

application under Order IX Rule 13 CPC principally raising objection about the application being barred by limitation and the same being not

accompanied by application under Section 5 of the Limitation Act.

The SDO by his order dated 9.2.2010 (Annex.9) came to the conclusion that besides the fact that the service was affected by way of affixation, the

Commissioner while preparing the report pursuant to the preliminary decree did not issue any notice to the respondent, came to the conclusion that the

application was required to be accepted and consequently accepted the application and set aside the exparte decree passed against the respondent.

Feeling aggrieved, the petitioner filed revision before the Board of Revenue, which also came to the same conclusion and rejected the revision petition.

The petitioner filed a review petition alleging error apparent on face of record, however, the review petition also rejected by order dated 1.10.2019

(Annex.13).

Learned counsel for the petitioner attempted to make submissions that the SDO as well as the Board or Revenue were not justified in setting aside the

exparte decree / dismiss the revision petition and review petition and, therefore, the orders impugned deserve to be quashed and set aside.

Submissions have been made that the application was filed after 30 days of passing of the decree and, therefore, the same was ex-facie barred by

limitation, however, no application was filed seeking condonation of delay and the plea, which was raised, pertain to respondent becoming aware of the

decree on the Patwari informing him about the same, which could only be a ground for seeking condonation and, therefore, the SDO and the Board of

Revenue were not justified in allowing the application / upholding the order in absence of application under Section 5 of the Limitation Act and,

therefore, the orders impugned deserve to be quashed and set aside.

Further submissions have been made that despite the petitioner making application for examining the process server and the two witness, they were

not called and, therefore also, the orders impugned deserve to be quashed and set aside.

I have considered the submissions made by learned counsel for the petitioner and have perused the material available on record.

Insofar as, the fact as to whether the application filed under Order IX Rule 13 CPC could not be allowed without the same being accompanied by an

application under Section 5 of the Limitation Act is concerned, the limitation has been provided under Article 123 of the Limitation Act, 1963, and the

time from which the period begins to run has been indicated as ‘the date of decree or where the summons or notice was not duly served, when the

applicant had knowledge of the decree’.

As it was specific case of the respondent that the summons were not duly served and he knew about the decree when the Patwari informed him

about the decree, the application under Order IX Rule 13 CPC was filed within 6 days of the said date and, therefore, the application was within

limitation and the same was not required to be accompanied by application under Section 5 of the Limitation Act.

Despite the petitioner raising issues pertaining to the service being proper, the SDO came to a specific conclusion that the manner in which the matter

proceeded, wherein, even the Commissioner before preparing the report pursuant to the preliminary decree did not issue notice to the respondent, the

entire action was not justified and came to the conclusion that the decree was liable to be set aside. The said finding of the SDO as upheld by the

Board of Revenue apparently does not call for any interference whatsoever.

Insofar as, the plea raised by the petitioner regarding the process server and the two witnesses were not called for cross-examination despite the

application made by the petitioner is concerned, besides the fact that the application was filed by the petitioner even before filing the reply, it is not

necessary in every case, wherever the service takes place by affixation, the said witnesses must be summoned. The petitioner himself could have

produced the said witnesses.

In view thereof, no case for interference in the orders impugned is made out. There is no substance in the writ petition. The same is, therefore,

dismissed.