Rajasthan High Court - Jodhpur
Mohani Bai vs Shailesh Jaiman @ Shail B Jaiman on 19 February, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
..
S.B. CIVIL WRIT PETITION NO. 2379/2019.
1. Mohani Bai W/o Late Shri Padam Singh, aged about 52 years,
2. Miss Basanti Bai D/o Late Shri Padam Singh, aged about 25 years,
3. Miss Teena Kumari D/o Late Shri Padam Singh, aged about 20 years,
4. Shri Fateh Singh S/o Late Shri Padam Singh, aged about 22 years, B/c Rajput, Resident of Village Kaya, Tehsil Girwa, District Udaipur, Rajasthan.
----Petitioners Versus
1. Shailesh Jaiman @ Shail B. Jaiman S/o Shri Bharat Bhushan Jaiman, B/c Brahman, Resident of 52/73 VT Road, Mansarowar, Jaipur, Rajasthan.
2. Board of Revenue, Rajasthan, Ajmer through its Registrar.
----Respondents
For Petitioner(s) : Mr. Laxmi Mal Lodha.
For Respondent(s) : Mr. Om Prakash Joshi.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 19/02/2019
1. The petitioners by way of this writ petition challenges the order passed by the Board of Revenue dated 11.12.2018 whereby the revision petition filed by the petitioners against the order passed by the SDO dated 06.02.2018 has been rejected.
(2 of 5) [CW-2379/2019]
2. Learned counsel for the petitioners submits that the SDO has wrongfully allowed the application under Order IX Rule 13 CPC moved by the respondents on the ground that before passing of an order under Order IX Rule 13 CPC, the application under Section 5 ought to have been decided.
3. Further it is submitted that the reasons for setting aside the ex-parte decree were also not made out. Learned counsel submits that since the application was moved after eight (08) months of the earlier decree passed by the SDO and an application under Section 5 was also moved, the SDO ought to have passed separately order on the application under Section 5 and thereafter, could have dealt with the application under Order IX Rule 13 CPC. It is further submitted that the contention raised before the Board has been wrongfully examined and the Board has fallen in error in holding that the application under Section 5 would be deemed to have been rejected.
4. Learned counsel also submits that the reasons for allowing the application under Order IX Rule 13 CPC which has been accepted by the Board were erroneous, once the notices were published in the daily newspapers, service would be deemed to have been effected on the respondents and, therefore, the order could not have been passed of setting aside the ex-parte decree.
5. Learned counsel relies upon the judgments reported in 1998 DNJ [Raj.] 767 : State of Rajasthan & Ors. Vs. Smt. Usha Sahini & Anr. and 2009 DNJ (SC) 141 : State of West Bengal & Ors. Vs. Somdeb Bandyopadhayay & Ors. to submit that this Court has laid down the law that if the application for condonation of delay was not disposed of and if the case has been finally decided, the order is required to be set aside and the case (3 of 5) [CW-2379/2019] is required to be sent back for decision on the application for condonation of delay.
6. I have heard learned counsel for the petitioners at length and examined the order passed by the Board of Revenue. The contentions as noticed above were also raised before the Board of Revenue and the judgments cited before this Court were also cited before the Board of Revenue.
7. The Board of Revenue, after considering the law as cited, found that in the case at hand, the ex-parte proceedings were taken on 10.08.2016 and thereafter, ex-parte decree was passed on 20.02.2017. Thereafter, an application was moved to set aside the said ex-parte decree on the ground that the applicant was out of country and in support thereof, he has placed related documents and the Board was satisfied that he was thus prevented to put up his defence and he had no knowledge of the case filed by the petitioners.
8. The Board of Revenue has also noticed that the provisions under Order 5 Rule 9(3) were not followed and the notices were not sent by registered post or presented and directly the procedure under Order 5 Rule 20 CPC was adopted for publication of the notices in the newspapers.
9. Taking into consideration that an invalid procedure was adopted by the concerned SDO while passing the ex-parte decree, it reached to the conclusion that the proceedings were ab-initio, unjustified and illegal. Accordingly, it had reached to this conclusion that the requirement of separately passing an order on the application under Section 5 in such circumstances by the SDO was not necessary while he was hearing application under Order IX Rule 13 CPC and once the arguments were heard on the (4 of 5) [CW-2379/2019] application under Order IX Rule 13 CPC and an order has been passed by the SDO concerned, it would be also understood that the delay has been condoned and treated as a composite order.
10. Since the order-sheets depicts all the stages of the case on the application under Order IX Rule 13 CPC, the Board has also found that the order passed by the SDO is in consonance with the law laid down by the Hon'ble Supreme Court in the case reported in 2011 AIR SC 9 (Alka Gupta Vs. Narender Kumar Gupta).
11. The submission of the learned counsel for the petitioners that the application under Section 5 should be decided first is well appreciated, I find that only in normal circumstances, it would have been accepted on merits but taking into consideration the facts, as noticed by the Board of Revenue and also taking into consideration that the order-sheets as produced by the petitioners of the SDO, I find that the SDO had fixed the case for arguments on the application under Order IX Rule 13 CPC and the petitioners at that point of time have not objected to that aspect and did not insist on disposal of Section 5 application.
12. This Court also noticed that the SDO while deciding the matters relating to the applications under Order IX Rule 13 CPC acts as an quasi-judicial authority and would thus not be strictly bound by the Code of Civil Procedure as akin to a Civil Court.
13. The Board of Revenue while deciding the revision petition of the petitioners has, therefore, dealt with all the aspects including the application under Section 5 as well as under Order IX Rule 13 CPC and the objections raised by the petitioners and has given its findings in detail, this Court in writ jurisdiction would not substitute its own opinion to that of the Board of Revenue. The limited jurisdiction of this Court has been clearly out-lined by the (5 of 5) [CW-2379/2019] Bench of Three Judges in the case of Sadhna Lodh Vs. National Insurance Company & Anr., reported in AIR 2003 (SC) 1561. Relevant para 7 of the said judgment is quoted hereinbelow:-
"7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or Tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or re-weigh the evidence upon which the inferior court or Tribunal purports to have passed the order or to correct errors of law in the decision."
14. Accordingly, I find no merit in the present writ petition and the same is dismissed.
(SANJEEV PRAKASH SHARMA),J 97-/-Mohan Powered by TCPDF (www.tcpdf.org)