Legal Representatives And Ors vs Heera Ram And Ors

This writ petition is directed against order dated 17.7.17 passed by the Board of Revenue Rajasthan, whereby the revision petition preferred by the petitioner against the order dated 26.5.08 passed by the Revenue Appellate Authority (RAA), Jodhpur, allowing the appeal preferred by the respondentHeeraram assailing the legality of the order dated 4.11.06 passed by the Assistant Collector, Phalodi, rejecting an application preferred under Order IX Rule 13 CPC, for setting aside ex parte decree, has been dismissed.

The petitioner filed a suit against the respondents under Section 53 and 88 of the Rajasthan Tenancy Act, 1955 (for short "the Act"). The suit was decreed by the Assistant Collector, Phalodi ex parte vide judgment and decree dated 11.2.97. The respondent-Heeraram filed an application under Order IX Rule 13 CPC for setting aside the ex parte decree, which was dismissed by the trial court vide order dated 28.4.04. Aggrieved thereby, an appeal preferred by the respondent-Heeraram was allowed by the RAA, Jodhpur vide order dated 19.12.05 and the matter was remanded to the Assistant Collector, Phalodi for consideration of the application preferred under Order IX Rule 13 CPC afresh. After the remand, the application was again rejected by the Assistant Collector, Phalodi vide order dated 4.11.06. The appeal preferred by the respondent-Heeraram against the said order was allowed by the RAA vide order dated 26.5.08 and while setting aside the ex parte decree, the suit was restored to its original number. The trial court was directed to decide the suit afresh after giving an opportunity to the respondent to file a written statement and to extend an opportunity to the parties to lead evidence. Aggrieved by the order passed by the RAA,the revision petition preferred by the petitioner has been dismissed by the Board of Revenue by order impugned. Hence, this petition.

Learned counsel appearing for the petitioner contended that the application under Order IX Rule 13 for setting aside the ex parte judgment and decree dated 11.2.97 was filed by the respondent on 22.12.97 and thus, the application being barred by limitation, was liable to be dismissed on this count alone. Learned counsel submitted that admittedly, the notice issued by the trial court was served upon the respondent and thus, merely because the same was not signed by the Presiding Officer of the court or the Court Master, the service of notice upon the respondent cannot be treated to be insufficient and therefore, the RAA had seriously erred in allowing the application preferred under Order IX Rule 13 CPC. Learned counsel submitted that as a matter of fact, notice served upon the respondent was never placed on record.

On the other hand, the counsel appearing for the respondent submitted that neither the notice served upon the respondent was duly signed by the Presiding Officer of the court or the Court Master nor it was accompanied by the copy of the plaint and thus, the service effected upon the appellant cannot be treated to be sufficient. Learned counsel submitted that the application preferred by the petitioner was treated to be in limitation and no objection regarding it being barred by limitation was raised by the petitioner at any stage of the proceedings and therefore, he cannot be permitted to raise any such objection at this belated stage.

I have considered the rival submissions of the learned counsel for the parties and perused the material on record.

Indisputably, by virtue of provisions of Section 208 of the Act, the provisions of Code of Civil Procedure, 1908 are applicable to all suits and proceedings under the Act before the Revenue Courts. As per Rule 1 (3) of Order V, every summon issued to the defendant to appear and answer the claim and to file the written statement of his defence, is required to be signed by the Judge or such officer as he appoints and shall be sealed with the seal of the court. That apart, as per Rule 2 of Order V, as was existing at the relevant time, every summon was required to be accompanied by a copy of the plaint or if so permitted by a concise statement. Thus, since the summon alleged to have been served upon the respondent was not duly signed and not accompanied by the copy of the plaint, the same cannot be said to be duly served. In this view of the matter, the RAA was absolutely justified in allowing the appeal preferred by the respondent and setting aside the ex parte decree.

Admittedly, the question with regard to the application being barred by limitation, was not raised by the petitioner at any stage of the proceedings and therefore, the application which stands decided by the Revenue Court, treating the same to be within limitation, cannot be faulted with. In any case, the petitioner cannot be permitted to raise objection in this regard for the first time before this court.

It is settled law that the rules of procedure should not be applied strictly so as to deny the justice to the party, unless, the court is satisfied that the party had motive for his non appearance on the date fixed for hearing and he deliberately absented himself to achieve such motive. As a matter of fact, whether the cause shown for the absence is sufficient or not, has to be construed liberally keeping in view the facts and circumstances of each case.

On the totality of the facts and circumstances of the present case noticed above, where the notice was even duly served upon the defendants, in the considered opinion of this court, to subserve the cause of justice, the respondent has rightly been extended an opportunity to defend the suit.

In view of the discussion above, the order impugned passed by the Board of Revenue, affirming the order passed by the RAA, Jodhpur, setting aside the ex parte judgment and decree, does not warrant any interference by this court in exercise of its supervisory jurisdiction.

In the result, the petition fails, it is hereby dismissed. No order as to costs.