Nathu Ram And Ors vs Gopal Ram And Ors

Heard learned counsel for the petitioners Mr.H.S. Rajpurohit and learned counsel for the respondents/caveators Mr.Moti Singh.

The petitioner has preferred the instant writ petition claiming the following prayer :-

"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and ;

1- By an appropriate writ, order or direction, the impugned judgment-dated 18.03.2019 (Annex.11) passed by the learned Board of Revenue as well as judgement dated 05.06.2013 passed by the Revenue Appellate Authority, Bikaner (Annex.9) may kindly be quashed and set aside and the judgment and decree dated 08.08.97 passed by the learned Assistant Collector, Bikaner (Anne.6) may kindly be upheld."

3.1 Brief facts of the case as noticed by this Court are that an agriculture land bearing khasra no.149 measuring 220.2 bighas situated in Village Nalbadi, Tehsil & District Bikaner is alleged to have been purchased by the father of the petitioners late Dhanna Ram through a registered sale deed and thereafter, the name was entered in the revenue record by attestation of mutation no.57 dated 1.4.1969. The present petitioners filed a suit under Sections 88 and 188 of the Rajasthan Tenancy Act against the private respondents on 29.5.1978 before the Sub Divisional Officer (North), Bikaner for protecting their rights regarding the land in question. The application for temporary injunction was also filed by the petitioners under Section 212 of the Tenancy Act which was allowed by order dated 18.7.1978 and affirmed by the appellate authority in appeal by order dated 4.2.1980. The respondents filed a revision before the Board of Revenue against these two orders which was dismissed on 4.3.1987.

3.2 The aforesaid suit was allowed vide judgment and decree dated 8.8.1997 by the Assistant Collector, Bikaner as neither reply nor evidence was filed by the defendants. An appeal was filed by the respondents against the judgment dated 8.8.1997 after a span of 15 years along with an application under Section 5 of the Limitation Act. The appeal was allowed vide judgment dated 5.6.2013 and while quashing the judgment dated 8.8.1997, the matter was remanded to the Assistant Collector with a direction to provide opportunity to lead evidence to the respondents. The petitioners filed second appeal under Section 225 which has also been dismissed vide judgment dated 18.3.2019.

Learned counsel for the petitioners submits that the respondents were contesting the application for temporary injunction and thus, it was within their knowledge that the litigation was going on between the parties and thus, the appeal filed after a delay of 15 years was not maintainable. Learned counsel for the petitioners also submitted that the original order passed on 8.8.1997 was in fact just and proper and the petitioners cannot be made to suffer on the ground of reopening of the case at this belated stage as they are contesting the dispute since 1978. Learned counsel for the petitioners further submitted that the original owners were contesting the case and the present respondents are the subsequent purchasers and, therefore, they cannot be permitted to vitiate the proceedings which have been going on since 1978.

Learned counsel for the respondents have shown from the record that in the original proceedings, the address of the respondents was Dharampura, Tehsil Kaithal in the State of Haryana whereas the paper publication for service of summons was made in Bikaner local newspaper Rajasthan Patrika, which has no publication in Tehsil Kaithal (Haryana). Learned counsel for the respondents further submits that the learned Courts below have clearly held that the provisions of Order 5 Rule 17 CPC are mandatory in nature and should have been strictly complied with if there was no personal service. It is not in dispute that the proceedings which resulted into an order in favour of the petitioners on 8.8.1997 was after the ex-parte proceedings in which the respondents could not participate as the summons were actually not served upon them.

After hearing the learned counsel for the parties and after perusing the material available on record, this Court finds that it is not a disputed position that the proceedings resulting into the judgment dated 8.8.1997 were ex-parte proceedings in which the summons were served upon the respondents by paper publication as per the application made by the petitioners. It is also not disputed that the total publication was in local newspaper Rajasthan Patrika whereas the address of the respondents mentioned in the proceedings was Dharampura, Tehsil Kaithal in State of Haryana. Order 5 Rules 17, 19 & 20 of Civil Procedure Code if read together created a mandatory obligation upon the petitioners to have effected proper service and it is a settled proposition of law that any ex-parte proceedings without proper service upon the parties shall be a nullity. In this case, the respondents have been able to establish that his actual address was Dharampura, Tehsil Kaithal in State of Haryana whereas the publication for service of summons was made in Rajasthan Patrika, Bikaner.

In light of the aforesaid observations, the impugned judgments passed by the Courts below dated 5.6.2013 and 18.3.2019 are justified and further, the learned Court below has already ordered for day to day hearing and thus, no interference is called for by this Court.

Accordingly, this writ petition, having no merits, is hereby dismissed.

Stay Petition No.5026/2019 also stands dismissed accordingly.