Rajasthan High Court - Jaipur
Ramchandra vs Regional Forest Officer And Ors on 9 May, 2012
Author: Arun Mishra
Bench: Arun Mishra
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T D.B. CIVIL SPECIAL APPEAL(WRIT) NO.401/2012 IN S.B. CIVIL WRIT PETITION NO. 2724/2012 Ramchandra Vs. The Regional Forest Officer & Ors. *** Date Judgment: May 09, 2012 PRESENT HON'BLE THE CHIEF JUSTICE MR. ARUN MISHRA HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN-I Mr. K.K. Mehrishi Sr. Advocate assisted by Mr. Timan Singh, for the appellant Reportable BY THE COURT(Per Hon'ble Jain J.)
Heard the learned counsel for the appellant.
2. The petitioner/appellant has preferred this special appeal against order dated 29th February, 2012 passed by Single Bench, whereby writ petition filed by petitioner/appellant, against order of Division Bench of Revenue Board dated 25th January, 2012, has been dismissed.
3. Briefly stated, the facts of the case are that plaintiff/petitioner/appellant filed a suit No.1595/1996 on 15th July, 1996 in the court of Sub Divisional Officer, Aklera, District, Jhalawar under Sections 88, 91 and 188 of the Rajasthan Tenancy Act for declaration, permanent injunction and correction of entry in revenue record, against defendants/respondents Nos. 1 to 3, wherein it was pleaded that a land of Khasra No.39 measuring 2 Bighas & 2 Biswas situated in village Chand Khedi, Tehsil, Khanpur, was allotted to plaintiff by allotment committee on 23rd November, 1975 and possession was handed over to him. The land was mutated in the name of plaintiff vide mutation No. 175 dated 30th August, 1984. The said land has wrongly been recorded in the name of Forest Department, therefore, it be declared that plaintiff is a allottee/tenant of the aforesaid land and defendants be restrained not to dispossess the plaintiff from the land in dispute and further that they should not raise any construction over it.
4. Defendant No.1, Tehsildar, Khanpur remained absent despite service of summons, therefore, ex parte proceedings were drawn. Defendant No.2 filed its written statement, wherein it was pleaded that land in dispute was a Forest land and it was recorded in the name of Forest Department and it could not have been allotted to any one.
5. The trial court framed 11 issues. The defendants remained absent, therefore, ex-parte proceedings were drawn against them. Therefore, no evidence was led on behalf of defendants. It appears from the order of Revenue Appellate Authority dated 2nd January, 2012 that an application for setting aside the ex parte proceedings was filed by defendants in the trial court, but the same was dismissed and ex parte decree was passed, on 25th September, 2000.
6. Being aggrieved with the ex-parte decree, the defendants preferred an appeal, but the same was dismissed being barred by limitation by the Revenue Appellate Authority vide judgment dated 11th May, 2001. The said order was challenged by the defendants before Revenue Board by way of second appeal, which was allowed by the Revenue Board vide judgment dated 23rd March, 2011 and case was remitted to the court of Revenue Appellate Authority to treat the appeal in time and to decide the same on merits.
7. Thereafter, the Revenue Appellate Authority vide its judgment dated 2nd January, 2012 considered the case on merits and examined revenue record available on record. Ex.P1 is the copy of mutation, according to which, the land bearing Khasra No.39 measuring 2 Bighas & 2 Biswas was recorded in the name of Forest Department and name of plaintiff was recorded as tenant. Ex.P2 is the copy of Jamabandi i.e. document of title, according to which, land bearing Khasra No.39 measuring 51 Bighas & 15 Biswas was recorded in the name of Forest Department. Ex.P3 is the copy of Jamabandi and according to it, land bearing Khasra No.39 measuring 2 Bighas 2 Biswas was recorded in the name of Forest Department. Revenue Appellate Authority was of the view that the other documents are not available on record, therefore further evidence in the case is necessary. As per proceedings of the trial court dated 29th May 2000, ex parte proceedings were drawn against defendants as they were not present. The defendants filed an application for setting aside the ex parte proceedings, but their application was dismissed and an ex parte decree was passed on 25th September, 2000. In these circumstances, the Revenue Appellate Authority vide its judgment dated 2nd January, 2012 allowed the appeal of defendants in part and while setting aside the ex-parte judgment and decree dated 25th September, 2000 passed by the trial court, remitted the matter to the trial court for deciding the matter afresh, after affording an opportunity to the appellants i.e. defendants, to lead evidence and of hearing. Parties were directed to appear before the trial court on 13th February, 2012.
8. Being aggrieved with the order of remand passed by the Revenue Appellate Authority, the plaintiff/petitioner filed an appeal before Revenue Board, but the same was dismissed vide judgment dated 25th January, 2012, which was also challenged before the Single Bench by way of writ petition by petitioner, but the same was dismissed. Hence petitioner has preferred this intra-court appeal.
9. Submission of learned counsel for the appellant is that Single Bench as well as Revenue Board as also Revenue Appellate Authority committed an illegality in not considering the fact that the appeal could not have been remanded by Revenue Appellate Authority to the trial court for affording an opportunity to defendants to lead evidence as it amounts to converting the regular appeal into a proceedings for setting aside the ex parte proceedings/decree, which is not permissible in law. In support of his submissions, he relied upon Nagar Palika Nigam Gwalior vs. Motilal Munnalal (AIR 1977 Madhya Pradesh 182), which was followed by Single Bench of Punjab & Haryana High Court in Smt. Maya Devi & Ors. vs. Mehria Gram Dal Mill, Hissar & Ors. (AIR 1988 Punjab & Haryana 176). He also submitted that the land in dispute was allotted to petitioner in the year 1975. The suit was filed in the year 1996. The matter is pending since long, therefore, it was not appropriate to remand the matter after such a long period. In support of his submission, he referred P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd. (2002 (2) SCC 686) and State of Punjab and Anr. vs. Gram Panchayat & Ors. (AIR 2002 SC 1365).
10. We have considered the submissions of the learned counsel for the appellant and examined the impugned order of Single Bench and other orders of Revenue Board, Revenue Appellate Authority and SDO, which are available on record.
11. So far as first submission of learned counsel for the appellant that regular appeal against ex parte decree could not have been converted into proceedings for setting aside the ex parte proceedings is concerned, we find that appellant is arguing this point, first time, before us as from the order of Single Bench, it is clear that this point was not argued before it. Nor such submission was averred in the writ petition. That apart, we find from the order of Revenue Appellate Authority dated 2nd January, 2012 that an application for setting aside the ex parte proceedings was filed by defendants in the trial court, but the same was dismissed and an ex parte decree dated 25th September, 2000 was passed. A copy of proceedings of the trial court dated 25th September, 2000 has also been placed on record along with an application under Order 41 Rule 27 CPC by appellant, which makes it clear that an application of defendants for setting aside the ex parte proceedings was dismissed on 25.09.2000 and on the same day, the trial court passed the ex parte decree. The trial court did not grant time to challenge the order dated 25th September, 2000, whereby the application of the defendants for setting aside the ex parte proceedings was dismissed and on the same day, passed the ex parte decree against the defendants. It is a settled law that all interim orders can be allowed to be challenged in a regular appeal filed against a final decree. Therefore, while challenging the ex parte decree dated 25th September, 2000, the order rejecting the application for setting aside the ex parte proceedings could have also been challenged.
12. The Hon'ble Apex Court in Lal Devi and Another Vs. Vaneeta Jain and Others, (2007) 7 SCC 200, in similar facts and circumstances, set aside the ex-parte decree passed by the trial court. Trial court had proceeded ex-parte against the defendants. An application for setting aside the ex-parte proceedings was dismissed, ex-parte decree was passed. Thereafter, an application under Order 9 Rule 13 CPC was filed for setting aside the ex-parte decree, but the same was not pressed, as regular appeal had already been filed before High Court against ex-parte decree. The High Court affirmed ex-parte decree passed by the trial court. The Hon'ble Apex Court set aside the judgment passed by the High Court as well as ex-parte decree passed by the trial court. Para 15 to 19 of the judgment are reproduced as under:
15. Having regard to the totality of circumstances we are of the view that in the interest of justice this appeal must be allowed. The learned District Judge recorded evidence, heard arguments and posted the matter later in the day for delivery of judgment. If the Court had adjourned the proceedings to another day after deciding to proceed ex parte, the defendant could have applied for being permitted to participate in the proceedings. In this case since everything happened on the same day the defendant did not get an opportunity to do so. The learned District Judge decided to proceed ex parte. It thereafter examined the witnesses present in Court and proceeded to hear arguments. It reserved its judgment to be pronounced later in the day. Even before he could pronounce judgment, counsel for the defendant had moved an application before him for recall of the order. It is true that in view of the law laid down by this Court in Arjun Singh, AIR 1964 SC 993 the learned District Judge could not have entertained an application under Order 9 Rule 7 CPC. We have also no hesitation in observing that counsel for the defendant were not careful enough to inform the learned District Judge about their pre-occupation before the High Court which prevented them from being present in his Court when the case was called for hearing. But the passing of an ex parte decree in a case of this nature is too harsh a consequence to be upheld. The defendant cannot be made to suffer an ex parte decree particularly when he was not at fault, having duly instructed his counsel to appear before the Court of the learned District Judge.
16. We are not delving into the technicalities of the legal questions argued before us because we are of the view that in the facts of this case the interest of justice demands that the ex parte decree be set aside. We appreciate that the learned District Jude could not entertain an application under Order 9 Rule 7 CPC., and even the application under Order 9 Rule 13 was dismissed as not pressed. But nothing prevented the High Court from setting aside the ex parte decree in the appeal preferred against it.
17. Shri K.K. Venugopal, learned senior counsel appearing on behalf of the respondents submitted before us that if the ex parte decree is set aside, the appellants may take undue advantage of the death of the defendant. They may now seek amendment of the written statement and set up fresh pleas. Counsel referred to the decree suffered by the wife of the defendant, Smt. Lal Devi, Appellant No. 1 herein in Civil Suit No. 259 of 1999 dated 6-4-2002 whereby a decree for permanent prohibitory injunction restraining Defendant No. 1 from selling or conveying the property mentioned therein has been passed. He, therefore submitted that the setting aside of the ex parte decree may give to the appellants an undue advantage and they may raise all sorts of pleas to defeat the just claim of the respondents. They may find ways and means of delaying the suit which has already been considerably delayed.
18. We have no doubt that the courts are not helpless. When parties adopt unfair or delaying tactics the Courts have abundant powers to deal with such situations. We direct the Court of District Judge who shall try the suit to proceed with utmost expedition so as to conclude the suit within a period of six months from the date on which the parties appear before him. He shall not grant adjournment unless it becomes absolutely necessary. To the extent possible he shall proceed with day-to-day hearing of the suit.
19. In the result this appeal is allowed and the impugned judgment and order of the High Court as also the ex parte decree passed by the Court of the learned District Judge on 7-1-1998 are set aside. The Trial Court is directed to proceed with the suit in accordance with law so as to dispose of it within a period of six months from the day of which the parties appear before it pursuant to this Court's order.
(emphasis supplied)
13. The Hon'ble Apex Court in Bhanu Kumar Jain Vs. Archana Kumar & Another, (2005) 1 SCC 787 held that when an ex-parte decree is passed, the defendant has two options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 CPC. He can take recourse to both the proceedings simultaneously, but in the event the appeal is dismissed, as a result whereof the ex-parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 CPC, a petition under Order 9 Rule 13 CPC would not be maintainable. It has also been observed by the Hon'ble Apex Court that in an appeal filed in terms of Section 96 CPC having regard to Section 105 thereof, it is also permissible for an appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit subject to the condition laid down therein. Relevant portion of the judgment is reproduced as under:
When an ex parte decree is passed, the defendant(apart from filing a review petition and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13 of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the said provision does not suggest that the converse is also true.
In an appeal filed in terms of Section 96 of the Code having regard to Section 105 thereof, it is also permissible for an Appellant to raise a contention as regard correctness or otherwise of an interlocutory order passed in the suit, subject to the conditions laid down therein.
14. In the the case in hand, it is clear from the order of Revenue Appellate Authority dated 02.01.2012 that while discussing the plaintiff's evidence, the Revenue Appellate Authority came to a conclusion that in the facts and circumstances of the present case, it is necessary, in the interest of justice, to afford an opportunity to defendant to lead evidence, particularly when land in dispute was a forest land and it was recorded in the name of Government Forest Department. The appellate Court has ample power to allow the application of any of the parties to adduce additional evidence at appellate stage, for the reasons to be recorded. Even if, there is no application of any of the parties, the appellate Court has ample power to grant an opportunity to any of the parties to lead evidence on a particular issue or point or in the matter, in the interest of justice, if it is so required. The Revenue Appellate Authority had an appellate power under Order 41 CPC as well as inherent power under Section 151 CPC to pass an order granting opportunity to defendant to lead evidence, in the interest of justice and to secure ends of justice, in the facts and circumstances of the present case.
15. In view of above discussion as well as the law laid down by Hon'ble Apex Court in Lal Devi and Another Vs. Vaneeta Jain and Others(supra) and Bhanu Kumar Jain Vs. Archana Kumar & Another(supra), the judgments referred by learned counsel for the appellant of Division Bench of Madhya Pradesh High Court in Nagar Palika Nigam Gwalior vs. Motilal Munnalal(Supra) and Single Bench of Punjab and Haryana High Court in Smt. Maya Devi & Ors. vs. Mehria Gram Dal Mill, Hissar & Ors.(supra), are of no consequence and the same are not applicable in the facts and circumstances of the present case.
16. So far as another submission of learned counsel for the appellant is concerned, we find that from the observation, discussion of the Revenue Appellate Authority as well as Revenue Board in their judgments, it is clear that total rakba/measurement of land bearing Khasra No.39 was 51 Bighas & 15 Biswas and it was entered in the name of Forest Department; out of this land belong to Forest Department, a land measuring 2 Bighas 2 Biswas was allotted to petitioner, as per averments made in the plaint by plaintiff, by allotment committee in the year 1975, but no mutation was entered in the name of plaintiff till 1984. However, the mistake appears to have been rectified and land was entered in the name of Forest Department and thereafter plaintiff filed a suit for declaration, injunction and correction in entry that he be declared as a recorded tenant of the land in dispute and entry be ordered to be corrected. From the judgment of Revenue Board, it appears that no land out of Khasra No.39 was allotted to plaintiff as tenant, but as per allotment proceedings register, appellant was allotted a land out of Khasra No.2406. It has further been pointed out in the order that land bearing Khasra No.39 was a forest land and it could not have been allotted or entered in the name of any one. Since proceedings were drawn ex parte and defendants could not lead evidence in this regard, therefore, Revenue Appellate Authority while exercising its appellate powers remanded the matter to the trial court for deciding the matter afresh after affording an opportunity of hearing and to lead evidence to the defendants. The Revenue Board considered all the aspects of the matter and in the interest of justice came to a conclusion that Revenue Appellate Authority was absolutely right in affording an opportunity to defendants in the matter and consequently dismissed the appeal of the plaintiff and therefore, the judgments of Hon'ble Apex Court in P. Purushottam Reddy & Anr. vs. Pratap Steels Ltd. (supra) and State of Punjab and Anr. vs. Gram Panchayat & Ors. (supra) are of no help to the plaintiff, as the same are not applicable in the facts and circumstances of the present case.
17. From the order of learned Single Judge, it appears that only submission made by the plaintiff was to protect the possession of plaintiff on the land in dispute. The Single Bench has already observed that petitioner should make a request by way of application before the trial court, who shall adjudicate the same in accordance with law.
18. In view of above discussion, we do not find any merit in any of the submissions of the learned counsel for the appellant. The special appeal is devoid of merits and the same is, accordingly dismissed in limine. The stay application as well as Application under Order 41 Rule 27 CPC also stand dismissed.
(NARENDRA KUMAR JAIN-I),J. (ARUN MISHRA),CJ.
BKS/-
All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
B.K. SHRIVASTAVA PRIVATE SECRETARY