Punjab-Haryana High Court
Mandir Mosuma Bara Dewala Shri ... vs The Financial Commissioner on 26 July, 2012
Author: Rekha Mittal
Bench: Rekha Mittal
Civil Writ Petition No. 6233 of 1999 -1-
In the High Court of Punjab and Haryana at Chandigarh
Civil Writ Petition No. 6233 of 1999(O&M)
Date of Decision: July 26, 2012
Mandir Mosuma Bara Dewala Shri Raghunath Ji
---Petitioner
versus
The Financial Commissioner, Haryana, Chandigarh and others
---Respondent
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr. Adarsh Jain, Advocate
for the petitioner
Mr. Lokesh Sinhal, Advocate,
for respondent No. 4
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
1. The petitioner prays for issuance of a writ of certiorari for quashing orders dated 26.6.1998(Annexure P-12), 31.5.1988(Annexure P-
7) and 1.4.1987 (Annexure P-6) passed by Financial Commissioner, Haryana, Chandigarh, District Collector, Faridabad and Assistant Collector Ist Grade, Faridabad, Camp at Palwal, respectively.
2. The case of the petitioner is that Mandir Mosuma Bara Dewala Shri Raghunath Ji is a dohlidar of land measuring 75 Kanals 12 Marlas situated at village Bhiduki, Tehsil Palwal, District Faridabad. The petitioner is a small land owner and respondent No. 4 had been cultivating the land as tenant on payment of Chakota @ `20/- per Kanal per year. The respondent did not pay the rent/lagan for the crop of three years total amounting to Civil Writ Petition No. 6233 of 1999 -2- `4686/-. A suit for ejectment of the respondent-tenant on the ground of personal requirement and non-payment of rent, was instituted. The respondent did not put in appearance despite service. An ex-parte decree was passed by Assistant Collector Ist Grade, Palwal, vide order dated 17.4.1979. In execution of the eviction order, the petitioner took possession of the land in dispute from the respondent-tenant on 13.6.1979 and Rapat No. 326 was entered in the Roznamcha of Halqa Patwari of village Bhiduki. An application for setting aside ex parte order of eviction was filed by the respondent-tenant and the same was set aside on 18.2.1982. The petitioner preferred an appeal challenging order dated 18.2.1982 and the same was dismissed by the District Collector, Faridabad on 14.8.1982 and the case was sent back for further proceedings before the Assistant Collector with a direction to the parties to appear before the Assistant Collector on 14.9.1982, but the respondent-tenant did not appear in the Court of Assistant Collector after remand of the case and ex parte proceedings were initiated against him. Ultimately, an ex parte decree was passed by the Assistant Collector, vide ejectment order dated 11.10.1982 and left the parties to bear their own costs. As no order regarding cost amounting to `1462.25 was passed by the said authority. The petitioner filed an appeal before District Collector, Faridabad, against the said order on the limited ground that the Assistant Collector did not award cost of the suit. However, no appeal was filed by the tenant-respondent against the ejectment order dated 11.10.1982.The tenant-respondent was served in the appeal. The appeal was disposed of, vide order dated 10.5.1983, in the presence of the counsel for the tenant-respondent. The respondent-tenant filed application dated 16.11.1982 before the Assistant Collector for setting Civil Writ Petition No. 6233 of 1999 -3- aside the ex parte decree dated 11.10.1982. The Assistant Collector without considering the facts and circumstances, set aside the ex parte decree, vide order dated 1.4.1987(Annexure P-6). The petitioner filed an appeal against order dated 1.4.1987 before District Collector, Faridabad, but District Collector, Faridabad, dismissed the appeal of the petitioner vide order dated 31.5.1988(Annexure P-7). The petitioner filed a revision petition before Financial Commissioner, Haryana, which was rejected, vide order dated 6.9.1993(Annexure P-9). The petitioner filed Civil Writ Petition No. 489 of 1994 in this Court, which was dismissed in limine, vide order dated 12.1.1994(Annexure P-10). The petitioner filed a petition for Special Leave to Appeal before Hon'ble the Supreme Court of India and the Apex Court, vide order dated 8.8.1994(Annexure P-11), remanded the case back to the Financial Commissioner, Haryana, with a direction to pass fresh order and to record its reasons, if it was to differ with the recommendations of the Commissioner. The Financial Commissioner, Haryana, passed order dated 26.6.1998 (Annexure P-12)declining the recommendations made by the Commissioner. It has been averred that the orders passed by the Courts below are illegal, unsustainable in law and are liable to be set aside. The petitioner is a religious institution and the tenant as respondent no. 4 has harassed the petitioner and carried him through a long litigation by abstaining from joining the ejectment proceedings.
3. Respondent No. 4 filed his written statement resisting the claim of the petitioner. He has denied that he had not paid rent from Rabi 1975 to Khariff 1977. All the allegations of the petitioner assailing the orders impugned in the petition, have been denied. By way of preliminary objections, it has been pleaded that the present Civil Writ Petition Civil Writ Petition No. 6233 of 1999 -4- challenging order dated 26.6.1998 is liable to be dismissed on the ground of delay and laches. The petition has also been challenged having not been filed by an authorised person and for want of resolution in favour of the person, who has signed the Power of Attorney.
4. I have heard counsel for the parties, perused the impugned orders and the record available.
5. Counsel for the petitioner has contended that the petitioner preferred an appeal against the ex parte eviction order dated 11.10.1982 and the said appeal was disposed of by the District Collector, Faridabad, vide order dated 10.5.1983. He has contended that once the findings of the trial Court have merged into the judgment passed by the Appellate Court, the Court of Assistant Collector had no authority and jurisdiction to entertain muchless allow application for setting aside the ex parte decree at the instance of the respondent-tenant. To substantiate his contention, counsel for the petitioner has invited the attention of this Court to explanation appended to Order IX Rule 13 of the Code of Civil Procedure (for short "the CPC"). He has also placed reliance upon a Full Bench decision of this Court in Kartar Singh v. Jagat Singh 1971 PLJ 348. In this case two questions were formulated to the following effect:-
(1)whether the trial Court has jurisdiction to entertain and allow an application under Order 9 rule 13 of the Civil Procedure Code, for setting aside an ex-parte decree subsequent to the decision of an appeal preferred against such a decree after due service of the parties to the appeal:
(2)Whether the answer to question No. (1) would be affected by the fact that the appellate Court has, or has not, Civil Writ Petition No. 6233 of 1999 -5- adjudicated on the rights and liabilities of the person who moves for the setting aside of the ex-parte decree against him?
Para 6 of the judgment contains a reference to the decision of the Supreme Court in Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat AIR 1970 S.C.1. After referring to the observations of the Supreme Court in Shankar's case (Supra) this Court recorded its observations as under:-
"The doctrine of merger of the order or decree of an inferior Court in that of the superior Court in the exercise of its corrective jurisdiction is well settled Moment the superior Court exercises its appellate or revisional jurisdiction the order of the inferior Court merges in the order of the superior Court. The only exception will be where a party to the proceedings in the inferior Court is not before the superior Court. In such a case the doctrine of merger will not apply to the detriment of such a party. But when the matter is taken to the superior Court and the parties to the proceedings in an inferior Court are either represented or served in the superior Court, the order passed by the superior Court will lead to the merger of the order of the inferior Court into that of the superior Court.
6. Counsel for the petitioner has contended that there were three options available to the respondent-tenant. It was open to him to urge before the Appellate Court that no decree could be passed against him because he was not served in the inferior Court. It was also open to him to Civil Writ Petition No. 6233 of 1999 -6- claim that the decree passed against him ex parte be set aside because he was not served or could not put in appearance before the inferior Court due to some sufficient reasons. The third course that was open to him was to ask the superior Court to stay its hands and not to decide the appeal till the decision of application under Order IX Rule 13 CPC, pending in the inferior Court. According to the learned counsel, none of these courses were pursued by the respondent-tenant. He has further argued that the Assistant Collector set aside the ex parte decree without appreciating the factual and legal position and the order of the Assistant Collector has been wrongly and illegally affirmed by the Collector and the Financial Commissioner while rejecting the appeal and revision preferred by the petitioner.
7. On the contrary, counsel for respondent No. 4-tenant has submitted that the District Collector, Faridabad, while dismissing the appeal of the petitioner, vide order dated 14.8.1982 and remanding the case for further proceedings, did not fix any date for the appearance of the parties before the Assistant Collector Ist Grade, Palwal, and as a result thereof, the respondent was rendered helpless to appear before the Assistant Collector on a particular date. It has been further argued that the respondent-tenant filed an application for setting aside ex parte decree dated 11.10.1982 and the said application was submitted before the institution of the appeal by the petitioner, which was disposed of by the District Collector, Faridabad, vide order dated 10.5.1983. It has been further argued that since the application of respondent-tenant for setting aside ex parte decree was already pending before the Assistant Collector, the disposal of the appeal by the Appellate Authority, vide order dated 10.5.1983, cannot cause any prejudice to the Civil Writ Petition No. 6233 of 1999 -7- rights of the respondent-tenant. He has argued with vehemence that District Collector, Faridabad, did not affirm the decree passed by the trial Court. Therefore, there is no question of merger of the decree of the trial Court into that of the Appellate Court. It has been further argued that the Appellate Court, vide order dated 10.5.1983, remanded the matter to Assistant Collector Ist Grade, Palwal, with a direction that the lower Court should decree the suit with cost and in the event of not awarding the cost, should give satisfactory reasons. He has supported the orders, impugned in the petition, with the submission that those orders were passed by the authorities keeping in view the fact that the respondent-tenant was condemned unheard and was ordered to be ejected without getting an opportunity of hearing to support his cause against his eviction.
8. The short question for adjudication is "whether the Assistant Collector was legally authorised to set aside the ex parte order dated 11.10.1982, in the face of the situation that the appeal against the said order was preferred by the petitioner and was disposed of vide order dated 10.5.1983, prior to the decision of the application of the respondent-tenant for setting aside the ejectment order?"
Rule 13 of Order IX CPC reads as under:-
"13.Setting aside decree ex parte against defendants.- In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfied the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court Civil Writ Petition No. 6233 of 1999 -8- or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also;
provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had sufficient time to appear and answer the plaintiffs claim.
Explanation.- Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no application shall lie under this rule for setting aside the ex parte decree."
9. Rule 13 of Order IX CPC deals with the right of the defendant to move an application for setting aside a decree passed ex parte against him. The explanation appended to the said rule is to be read in the context of the provision of rule 13 CPC. Therefore, if an appeal has been filed against an ex parte decree by the defendant, no application shall lie for setting aside the ex parte decree if the appeal has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal. In the instant case, indisputably, no appeal has been preferred by the respondent-tenant against the order of ejectment dated 11.10.1982. The explanation appended to Rule 13 has got no application to the facts of the case in hand. Now, the question arises as to whether the order of ejectment dated 11.10.1982 passed ex parte against respondent-tenant, has merged in the order of the Appellate Court. The Assistant collector Ist Grade, Palwal, vide order dated 11.10.1982 passed a decree for ejectment and recovery of Civil Writ Petition No. 6233 of 1999 -9- lagan of `4686/- in favour of plaintiff-petitioner and against the defendant-respondent No. 4, no order was passed with regard to the cost. The parties were directed to bear their own costs. Admittedly, none of the parties to this litigation preferred an appeal against the decree of ejectment as well as recovery of rent/lagan of `4686/-. The respondent-defendant did not prefer any appeal against the decision dated 11.10.1982. It is only the petitioner, who filed an appeal against the order/decree dated 11.10.1982 for the redressal of its grievance that the lower Court did not award the costs of the suit amounting to ` 1462.25. Since none of the parties preferred any appeal against the order of ejectment and recovery, there was no question of the said decree of the lower Court being affirmed or reversed by the Appellate Court. The plea of the appellant with regard to the award of costs was also not decided by the Appellate Court and the matter was remanded back to Assistant Collector Ist Grade, Palwal, with the following observations:-
"Therefore, the case is remanded to Assistant Collector Ist Grade and it is ordered that the lower court should decree the suit with cost and in the event of not awarding the cost, should give satisfactory reasons. Both the parties have been directed to appear in the court of Assistant Collector Grade I, Palwal, on 25.5.1983."
10. Keeping in view these facts and circumstances, I find it difficult to accept the contention of the counsel for the petitioner that the decree of the lower Court dated 11.10.1982 merged in that of the superior Court and, therefore, the Assistant Collector Ist Grade, Palwal, was not competent to entertain and allow the application of respondent-defendant for setting aside the ex parte decree. Under these circumstances, counsel for Civil Writ Petition No. 6233 of 1999 -10- the petitioner cannot take any advantage to his contentions from the observations made in Kartar Singh's case (supra). The Assistant Collector was well within his right to dispose of the application for setting aside ex parte decree dated 11.10.1982, keeping in view the merits of the case. Counsel for the petitioner has not challenged the order of the said authority on any other ground. No fault can be found with the order passed by the Assistant Collector setting aside ex parte decree dated 11.10.1982 and the affirmation of the order of the Assistant Collector Ist Grade, Palwal, by the Collector and Financial Commissioner, Haryana.
11. Finding no merit in this petition, the same is hereby dismissed.
( REKHA MITTAL) JUDGE JULY 26, 2012 PARAMJIT