Ashok Kumar and ors. Vs. State of Rajasthan - Court Judgment

Dinesh Maheshwari, J.

1. This writ petition has been preferred against the order dt. 27.05.2005 as passed by the Board of Revenue for Rajasthan, Ajmer ('the Board'/'the Board of Revenue') rejecting the application moved on behalf of the petitioners for restoration of Revision Petition No. 116/96/TA/Sriganganagar that was dismissed on 04.04.2005 for want for prosecution.

2. The background aspects of the matter are that an application moved by the petitioners under Section 15AAA of the Rajasthan Tenancy Act, 1955 claiming khatedari rights in the agriculture land comprised in Khasra No. 3 at village Dhaba, Tehsil Anupgarh came to be rejected by the Tehsildar, Anupgarh by the order dt. 04.07.1994 with the findings that the land in question, now comprised in Murraba Nos. 23/24 and 24/17 of Chak 4NM, had been in cultivatory possession of different persons; and that the petitioners or their predecessor were not in continuous possession thereof. The order so passed by the Tehsildar was maintained and affirmed by the Collector, Sriganganagar while rejecting the appeal (No. 10/1995) taken by the petitioners by the order dt. 28.05.1996. It may be noticed that another person Rajendra Krishna Khanna, who claimed his rights in the land in question, was ordered to be joined as respondent No. 2 in the said appeal before the Collector, Sriganganagar.

3. Aggrieved by the order dt. 28.05.1996 as passed by the Collector, Sriganganagar, the petitioners preferred the aforesaid Revision Petition No. 116/96/TA/Sriganganagar before the Board of Revenue. This revision petition came up for hearing before the learned member of the Board on 04.04.2005 but was dismissed for want of prosecution with the following order:

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4. The very next day, i.e., on 05.04.2005, an application was moved on behalf of the petitioners before the Board seeking restoration of the revision petition that was, according to the petitioners, dismissed for default in appearance. The petitioners submitted that they were represented by the advocate Shri Vijay Soni who was present before the Board on 04.04.2005 but remained engaged in arguing Appeal No. 98/2003 before the Division Bench of the Board; and when the revision petition was called out for hearing, the said advocate Shri Vijay Soni personally informed the reader of the Court about his engagement before the Division Bench. It was further submitted that the petitioners' advocate appeared before the Bench concerned at 12.30 p.m. after conclusion of his matter before the Division Bench but was informed that the revision petition had already been dismissed in default and the learned member of the Board pointed out that the order-sheet had already been signed. It was submitted that there was no fault on the part of the petitioner or their counsel; that the petition was dismissed in default per mistake; and that there were sufficient reasons wherefor Shri Vijay Soni could not appear before the learned single member. The application was filed with the affidavits of the petitioner Ashok Kumar and the said advocate Shri Vijay Soni.

5. The application so moved on behalf of the petitioners came to be rejected by the impugned order dt. 27.05.2005. While observing that if the petitioners were aggrieved of the order dt. 04.04.2005, they ought to have moved a review application and the application as moved by them under Section 151 of the Code of Civil Procedure for restoration was not acceptable, the learned member of the Board pointed out that the assertions as made in the application, about the revision petition having been mistakenly dismissed in default and about sufficient reasons for the counsel's absence, were not in conformity with the order dt. 04.04.2005. The learned member also noticed that the counsel appearing for the opposite party had filed counter-affidavit refuting the suggestions as made in the affidavit filed by the petitioner's counsel. The learned member further referred to the decisions of the Hon'ble Supreme Court in the cases of Bank of Bihar v. Mahabir Lal and Ors. : AIR 1964 SC 377, State of Maharashtra v. Ramdas Shrinivas Nayak and Anr. : AIR 1982 SC 1249, and Roop Kumar v. Mohan Thedani : AIR 2003 SC 2418 to point out that the facts stated by the Court in its order, particularly on the things happening or transpiring before the Court, were conclusive; and pointed out that he alone had passed the order dt. 04.04.2005 and the facts as stated therein were correct. The learned member found no justification to grant the application under Section 151 of the Code of Civil Procedure and hence, rejected the same.

6. It may be pointed out that looking to the observations made by the learned member of the Board about the counter-affidavit filed by the counsel for the other side and not finding a copy of such counter-affidavit in the documents annexed with this petition, questions in that regard were posed during the course of hearing of this writ petition; and the learned Counsel appearing for the petitioners has now placed on record a copy of the said counter-affidavit.

7. Coming to the contents of the affidavits later, it could usefully be noticed at this juncture that opposition to the application for restoration with such counter-affidavit primarily came on behalf the said non-applicant No. 2 who was, as noticed hereinbefore, joined as a party to these proceedings at the appellate stage before the Collector, Sriganganagar. The said non-applicant No. 2 Rajendra Krishna Khanna was, of course, joined as respondent No. 2 in this writ petition but then, it has been asserted in the petition that he was not a necessary party; and that he was earlier impleaded as a party because the land in question was allotted to him but later on, such allotment was cancelled by the Collector, Sriganganagar on 25.04.2003 and he had been allotted another piece of land. The petitioners have also pointed out that an application for deleting the name of the said respondent No. 2 had indeed been filed in the said revision petition before the Board of Revenue on 27.01.2005.

8. In this writ petition, when the said respondent No. 2 remained to be served and the matter was placed before the Court for orders, the learned Counsel for the petitioners prayed for deleting the name of the said respondent No. 2 from the array of the parties and such a prayer was granted, subject to all just exceptions, with the following order:

Learned Counsel for the petitioners submits that looking to the subject matter of this writ petition, the respondent No. 2 is not a necessary party and prays that the name of respondent No. 2 may be ordered to be deleted from the array of parties.

At the request of the learned Counsel for the petitioners, the name of respondent No. 2 is ordered to be deleted from the array of parties, of course, subject to all just exceptions. A note to that effect be put against the name of respondent No. 2.

Office to proceed.

9. Having examined the matter in its totality, this Court is of opinion that even when the learned member of the Board cannot be said to be wrong in the propositions as stated in the impugned order dt. 27.05.2005 particularly on the sanctity of the record of proceedings; and even when the conduct of the petitioners in not proceeding with the hearing of the revision petition when called out cannot be approved yet, the learned member seems to have taken too strict and rather rigid a view of the matter while taking exceptions to the contents of the application and the counsel's affidavit; and in the process, the other facet of the matter seems to have escaped attention of the learned member that maintaining the order dt. 04.04.2005 would only result in depriving the petitioners of decision of their case on merits.

10. The learned member had, of course, been perfectly right in pointing out that the order-sheets of the Courts and the Judge's records could not be allowed to be contradicted but then, such propositions were apposite to the extent the application and the affidavit were running contrary to the contents of the order dt. 04.04.2005. However, those contents of the application which were not strictly in conformity with the order dt. 04.04.2005 or were suffering from some incongruity, should not have been approached with the same disfavour that is meant for the averments intended at contradicting the Court's records. Incongruity or inconsistency could occur for several of the reasons including those referable to the diction of the person concerned while using the language and framing the expressions.

11. The fact cannot be lost sight of that the application for restoration was moved with affidavit of the advocate the very next day of passing of the order of dismissal of the revision petition. It has not been shown that the application was moved with conscious knowledge about the expressions used in the order dt. 04.04.2005 nor there appears any cogent reason that the counsel filing the affidavit in support of the application had intentionally attempted to contradict the Court's record. For that matter, it may be pointed out that the contents of the affidavit filed by the counsel for the other side had been to the effect that the petitioners' counsel did appear before the learned single member when the revision petition was called out and suggested that he would argue the matter after some time or if he being not in a position to argue, the other counsel engaged by the petitioners would proceed with the matter. Even the contents of the said counter-affidavit do not exactly match and tally with the contents of the order dt. 04.04.2005 that conveys as if the counsel for the petitioners declined to argue the matter at all.

12. The order dt. 04.04.2005 also states that it was not justified to give another date of hearing. This expression itself suggests that the counsel for the petitioners, if at all, sought a next date in the matter and did not state altogether a denial to proceed with the matter as is suggested by the opening lines of the order.

13. This Court would hasten to say that the foregoing observations are not at all meant to find faults with the order dt. 04.04.2005 but are only to indicate that even when the possibility of some mistake on the part of the counsel for the petitioners is not ruled out, there had been some mismatch of expressions and some inconsistencies. Put in a nutshell, this Court would only emphasis that the entire of this dispensable discordance could well have been brushed aside by the learned member of the Board for the sake of decision of the case on merits and such an approach would definitely have been nearer to the interests of justice.

14. Leaving the other aspects aside, the learned member of the Board could have appreciated the fact that the application was indeed moved the very next day of the order 04.04.2005 and having regard to the circumstances, the matter could have been taken up for hearing at the earliest even while putting the petitioners to terms and for that matter, while imposing reasonable costs as considered proper including those to compensate the other party.

15. Even if an extreme view of the matter is taken and it is assumed that the counsel representing the petitioner had not extended co-operation to the Court and had made suggestions contrary to what actually transpired in the Court, this Court feels that the Court concerned, even while not agreeing with what the counsel suggested, could have extended the petitioners an opportunity of hearing of the case that would have only resulted in decision of the case on merits and served the cause of justice. It remains fundamental that as far as possible, a matter is preferred to be decided by the Court on merits and for that matter, any fault here or a mistake there by the parties and/or their counsel need not, beyond a point, detain the consideration of the merits of case by the Court concerned.

16. In the aforesaid view of the matter, even while not disagreeing with what has been observed by the learned member of the Board and even while not finding justification that the case was not argued on behalf of the petitioners when called out before the Board, this Court is of opinion that interest of justice shall be served if the petitioners are extended an opportunity of hearing while putting them to terms.

17. However, a few aspects need to be clarified. As noticed above, essentially the opposition before the Board of Revenue in restoration of the revision petition came on behalf of the non-applicant No. 2. However, at the request of the petitioners, the name of the said non-petitioner No. 2 (joined herein as respondent No. 2) has been deleted from the array of the parties in this writ petition and it has been pointed out that an application had already been moved before the Board of Revenue for deleting his name from the array of the parties. Having regard to the circumstances, it is made clear that the revision petition, when to be restored, would be taken up for consideration by the Board of Revenue only in relation to the respondent No. 1 (the State of Rajasthan) while deleting the name of respondent No. 2 from the array of the parties. As to what would be the consequence of such a deletion would obviously the matter for the Board to examine while finally deciding the revision petition.

18. It is also made clear that this Court has not pronounced on the merits of the case of either of the parties and it is only in the interest of justice and in order to extend an opportunity of hearing to the petitioners that the impugned order of the Board of Revenue is being superseded and the revision petition is being ordered to be restored. The revision petition shall otherwise be dealt with and considered only on its merits and no observations herein shall be considered pronouncing on any rights regarding the land in question.

19. Apart from the aforesaid and even while proposing to restore the revision petition for consideration on merits, this Court is of opinion that looking to the overall circumstances, the petitioners ought to be put to terms of costs; and it does appear appropriate that the revision petition be restored for consideration by the Board only upon the petitioners' depositing an amount of Rs. 5,000/- as costs with the State Legal Services Authority, Jodhpur before the date of appearance before the Board.

20. Upon the petitioners' producing the receipt of deposit of such amount of costs, the Board may restore the revision petition to its number and decide the same in accordance with law keeping in view the observations made hereinabove. Moreover, it would not be required of the Board to extend the petitioners repeated opportunities for the purpose of hearing of the revision petition; and it shall be expected of the petitioners to attend the revision petition when called out and to proceed with the matter. If the petitioners now fail to co-operate, it shall be permissible for the Board to take up, consider, and decide the revision petition on merits or to pass any appropriate order as considered fit and necessary.

21. The petition is allowed only to the extent indicated above. It is made clear that deposit of the costs shall be the condition precedent for restoration of the said revision petition and upon the petitioners' failure to do so, the impugned order shall stand as if not interfered with in this writ petition.

22. A copy of this order be sent to the Board of Revenue; and the petitioners shall stand at notice through their counsel present before this Court to appear before the Board of Revenue on 30.04.2009.