Rajasthan High Court - Jaipur
Legal Representatives Of Late Manphool ... vs State Of Rajasthan And Ors. on 5 March, 1993
Equivalent citations: 1993WLN(UC)114
Author: A.K. Mathur
Bench: A.K. Mathur
JUDGMENT Rajendra Saxena, J.
1. By means of this writ petition, petitioners have challenged the correctness and validity of the order of the Board of Revenue dated 18.1.1982 (Ex. 3) as well as the judgment dated 24.5.1979 (Ex. 2) passed by the Revenue Appellate Authority, Bikaner and prayed that the appeal, filed by the petitioners be sent back to the Revenue Appellate Authority, Bikaner for re-hearing and for deciding the same in accordance with law.
2. The necessary facts for the disposal of this writ petition lie in a narrow compass. The Sub Divisional Officer, Hanumangarh assessed the agricultural land, held by assessees Manphool and his sons Nathu & Mangilal under the Old Ceiling Law and by his order dated 2.7.74 declared 155 bighas and 15 biswas agricultural holding recorded in the khatedari of Manphool and 17 bighas of land, held by Nathu and Mangilal each surplus exceeding the ceiling limit and ordered for the acquisition thereof. The said assessees challenged the said order by filing, appeal No. 112/4 before the Revenue Appellate Authority, Bikaner. The said appeal was fixed for hearing on 19.5.79. On that day, the appellants were not present but their advocate appeared before the Revenue Appellate Authority and pleaded no instructions. The Revenue Appellate Authority treated the appellants to be present in the Court through their advocate, who did not argue the appeal. The Revenue Appellate Authority therefore, after perusing the record of the case by his judgment dated 24.5.79 dismissed the appeal on merits. Manphool, Nathu and Mangilal aggrieved by the said judgment filed Revision Petition No. 182/79/T.A./ Ganganagar under Section 230 of the Rajasthan Tenancy Act, 1955 (in short 'the Act, 1955') before the Board of Revenue for Rajasthan, Ajmer. The learned Member of the Board of Revenue by his order dt. 18.1.82 (Ex. 3) partly accepted the revision petition and treated the judgment dt, 24.5.79 (Ex. 2), passed by the Revenue Appellate Authority as one of dismissal of appeal under Order 41 Rule 17 CPC. A review petition under Section 229 of the Act, 1955 was filed on behalf of the said assessees wherein they prayed that the Revenue Appellate Authority should have been directed to decide the appeal on merits. After hearing the appellants. The learned Member of the Board of Revenue however did not accede to the request of the assessees and by his order dated 1.9.82(Ex. 4) dismissed the review petition. Hence this writ petition.
3. This Court vide its ad interim order dated 11.10.82 which was subsequently confirmed by order dated 21.1.1983, directed that the dispossession of the assessees from the lands in dispute in pursuance of Revenue Appellate Authority, Bikaner's Judgment dated 24.5.79 (Ex. 2) shall be stayed, if the said assessees had not been dispossessed earlier. During the pendency of this writ petition, the assessee Manphool expired and as such his legal representatives have been impleaded.
4. By order dated 13.7.79, respondents No. 4 to 6 were impleaded in this writ petition. However, they have preferred to remain absent.
5. We have heard learned Counsel for the petitioners and the learned Dy. Govt. Advocate appearing for respondents no. 1 to 3 at length and perused the relevant record in extenso.
6. Mr. Vijay Bishnoi has strenuously contended that since on 19.5.79, when the appeal was fixed for hearing, the assessee appellants were not present and their advocate had also pleaded no instructions, the learned Revenue Appellate Authority was not empowered to dismiss their appeal on merits in view of the explanation added to Order 41 Rule 17 C.P.C. Therefore, the Revenue Appellate Authority should have either adjourned hearing or could have dismissed the appeal in default. The learned Member of the Board of Revenue also committed an error apparent on the face of the record by substituting its own judgment by treating the judgment dated 24.5.79(Ex. 2) as being passed under Order 41 Rule 17 CPC and in not remanding the case to the Revenue Appellate Authority for rehearing or for being dealt-with in accordance with law.
7. On the other hand, Shri Kawadia learned Dy. Govt. Advocate has simply reiterated the reasonings given by the Board of Revenue in its order dated 18.1.1992 and 1.9.83, Ex. 3 and Ex. 4 respectively.
8. We have given our thoughtful consideration to the rival contentions. It is not in dispute that on 19.5.79 when the appeal was fixed for hearing before the Revenue Appellate Authority, the assessee appellants were not present and their counsel, who appeared in the Court, pleaded no instruction's. Thus it was clearly a case of non-appearance of the appellants and the only course open for the Revenue Appellate Authority under Order 41 Rule 17 CPC was either to adjourn the appeal or to make an order that the appeal be dismissed for appellants' default. By the Code of Civil Procedure (Amendment) Act No. 104 of 1976, the following explanation has been added to Rule 17(1) of Order 41:
Nothing in this sub rule shall be construed as empowering the Court to dismiss an appeal on merits.
9. This explanation has, therefore, been added to clarify the law in view of conflict of decisions, given by various High Courts on the matter by making express provision that where an appellant does not appear, the Court has no power to dismiss the appeal on merits. It may also be mentioned here that in Thakur Sukhpal Singh v. Thakur Kayan Singh and Anr. interpreting then the provisions of Order 41 Rule 16(1), 17, 30, 31 and 32 CPC. the Hon'ble Supreme Court held that the Appellate Court is not bound to decide an appeal on merits on the basis of the material on record when the appellant appears at the hearing but it does not address the Court and that it can dismiss and appeal for default. Therefore, the Revenue Appellate Authority was not empowered to dismiss assessees' appeal on the merits and it could, have only dismissed their appeal under Order 41 Rule 17(1) CPC for their default. In that contingency, the assessee appellants had a right to apply to the Revenue Appellate Authority for re-admission of the appeal and where it was proved that the were prevented by any sufficient cause from appearing when the appeal was called-on for hearing, the Revenue Appellate Authority could have readmitted their appeal under Order 41 Rule 19 CPC on such terms as to cost or otherwise, it thought fit. The learned Member of the Board of Revenue vide his order dated 18.1.82 (Ex. 3) has also held that since the appellants were not present and their counsel had pleaded no instructions, it meant that the appellants were not present in the Court either personally or through their counsel and that in such circumstances, their appeal could have been dismissed by the Revenue Appellate Authority under Order 41 Rule. 17 CPC for default and not on merits. But thereafter the learned Revenue Board has held that the appeal could only be treated as having been dismissed for default and not on merits. As a matter of fact, the Board ought to have quashed the Judgment of the Revenue Appellate Authority dated 24.5.79 (Ex. 2) as it was apparently without jurisdiction and remanded the appeal to the Revenue Appellate Authority for passing necessary order in accordance with law so that the assessee appellants could avail the. benefit of the specific provisions of the Order 41 Rule 19 CPC for applying to the Revenue Appellate Authority for re-admission of the appeal and for showing cause which prevented them from appearing before him when the appeal was called-on for hearing. The learned Member of the Board of Revenue, therefore, committed an error apparent on the face of the record by substituting its own judgment and directing that the judgment dt. 24.5.79 (Ex. 2) of the Revenue Appellate Authority shall be treated as one of dismissal of appeal under Order 41 Rule 17 CPC without giving further directions as to in what manner, the assessee appellants could avail remedy prescribed under Order 41 Rule 19 CPC because the limitation for filing such an application had already expired. The learned Member of the Board of Revenue also did not appreciate this dilemma of the assessee appellants and summarily dismissed their review petition in limine. Therefore, the impugned orders of the learned lower Courts cannot be sustained.
10. In the result, we allow this writ petition, set aside the judgment dated 24.5.79 (Ex. 2) passed by the Revenue Appellate Authority and modify the order dated 18.1.1982 (Ex. 3) passed by the Board of Revenue and direct that the assessee appellants's appeal shall be deemed to have been dismissed on 24.5.1979 under Order 41 Rule 17(1) CPC for their default and that in case, petitioners file an application within thirty days from the date of pronouncement of this order for re-admission of the said appeal under Order 41 Rule 17, CPC alongwith an application under Section 5 of the Limitation Act with affidavit for condonation of delay then he will condone the delay re-admitting the appeal and decide the same on merits after hearing the parties in accordance with law. The stay order dated 11.10.1982 shall remain in force for a period of thirty days from the date of pronouncement of this order.
11. The concerning file of the Sub Divisional Officer be immediately sent back to the Revenue Appellate Authority.