Lakhbir Chand and Others vs The Financial Commissioner and Others

M.R. Sharma, J.—Respondents No. 2 to 13, alleging themselves to be landlords, brought a suit u/s 77(3)(e) and (n) of the Punjab Tenancy Act, 1887 for the ejectment of the Petitioners from the land in dispute on the ground inter alia of non-payment of rent. The Petitioners and other proforma Respondents resisted the suit on the ground that they were occupancy tenants and bad become full owners of the land in dispute on account of the changed law. The pleas raised by the Petitioners prevailed with the Assistant Collector, I Grade, but on appeal, the case was reminded to the Collector. This time, the Assistant Collector Grade gave a finding against the Petitioners. They appealed against the said order of the Assistant Collector and the appeal was dismissed on the ground that the power of attorney had not been signed by some of the Appellants. I might add that prior to the decision of the appeal, properly executed and duly signed power of attorney by all the Appellants had been filed in the court of the Collector, but even then, he held that the appeal had not been properly filed. It was also argued before him on behalf of the Respondents that proper guardian ad litem had not been appointed on behalf of two minors and the memo of appeal purported to have been signed on their behalf should be deemed to have been filed by an utter stranger.

The Petitioners then filed a revision which was dismissed by the Additional Commissioner, Jullundur. They went up in revision before the Financial Commissioner who also dismissed the revision by making the following observations:

Considering the rulings cited by the parties before me, at the most it can be inferred in favour of the Petitioners that the learned Collector could allow the Petitioners to set right the defect in the filing of the appeal. In the present case, the learned Collector did not do so It, therefore, requires to be determined whether in such circumstances where the Court could accommodate the Petitioners but did not do so, interference in revision would be justified or not. It is established law that interference in revision in such cases is to be made by the Financial Commissioner on the same conditions as are prescribed in Section 115 Code of Civil procedure. The learned Collector had the jurisdiction to permit or reject the request for making good the deficiency. Even in cases where the learned lower Courts have taken a wrong view of law, interference in revision is not justified.

The Petitioners have come up in the instant petition against the view taken by the Revenue Authorities.

Pending this petition, a few of the Respondents died and their legal representatives were not brought on record. Shri Sarin, learned Counsel for the Respondents has argued that this writ petition be dismissed as having abated. In support of this contention, the learned Counsel relies upon of a Full Bench decision of this Court in CWP 1522/1973 Teja Singh v. Union Territory Chandigarh decided on September 20, 1980. In that case it was held that even though Order XXII of the CPC applied to writ proceedings, yet the provisions of the Limitation Act did not create any bar against the making of application for bringing on record legal representatives of the Respondents. The record shows that in respect of all the deceased Respondents, the Petitioners have made applications for bringing the legal representatives or record. These applications are allowed and the writ petition is entertained for decision on merits. I have adopted this course, because if I had not done so, the appeal filed on behalf of the Petitioners, at least two of whom are minors, would have suffered a dismissal without the writ petition being decided on merits.

As for as the merits of the controversy are concerned, the view taken by the Revenue Authorities is clearly erroneous. Admittedly, the appeal before the Collector had been filed on behalf of all the Appellants, only a power of attorney had not been signed by some of them. As noticed earlier, pending that appeal, this defect had been removed and the learned Counsel for the Appellants, appearing before the learned Collector, had filed a fresh properly executed power of attorney When such a power of attorney is filed, it relates back to the date on which the appeal had been filed. In this situation, it was not open to the Collector to have held that the appeal had been improperly filed By doing so, he has failed to exercise the jurisdiction vested in him by law. Similarly, it was the duty of the learned Commissioner and the learned Financial Commissioner to have rectified this mistake committed by the Collector. When a statute provides for an appeal and the appellate authority declines to hear it for grounds which are untenable or illegal, it is the duty of the Financial Commissioner to issue a command to such an appellate authority for performance of his duty to decide the appeal on merits in accordance with law. Wherever the learned Financial Commissioner omits to do so, the judgment rendered by him can be corrected by this Court in exercise of jurisdiction under Article 226 of the Constitution of India.

For reasons aforesaid, I allow this petition, set aside the orders passed by the Revenue Authorities, that is the Collector, Additional Commissioner and Financial Commissioner and remit the case to the Collector for deciding the appeal of the Petitioners on merits in accordance with law. The parties through their counsel are directed to appear before him on March 16, 1981.