Dr. Sharadchandra Malharrao ... vs Markus Philips Mendosa
2003 Latest Caselaw 977 Bom

JUDGMENT

A.M. Khanwilkar, J.

1. This writ petition under Article 227 of the Constitution of India takes exception to the judgment and order dated 27th June, 1989 passed by the Maharashtra Revenue Tribunal in Tenancy Revision No. 33/1987.

2. The petitioners claim to be owners in respect of land admeasuring 1 guntha out of Survey No. 124 and 6 gunthas out of Survey No. 125, both situated at Uttan, district Thane. The respondent filed application for declaration that he was cultivating the suit lands as tenant since prior to the tillers' day. That application has been decided ex parte against the petitioners on the premise that inspite of notice of the proceedings, none appeared for the landlord. The Tahsildar, by judgment and order dated 25th December, 1983, allowed the application preferred by the respondent-tenant. Against this decision, the petitioners filed appeal on 20th August, 1985. According to the Petitioners, they were not informed about the decision passed by the Tahsildar and that fact came to their knowledge only on 22nd July, 1985, while inspection of the record before the tenancy authorities was taken. Soon thereafter, the certified copy was applied for by the petitioners of the decision passed by the Tahsildar, which was made ready on 12th August. 1985 and delivered to the petitioners on the same day. The landlords accordingly asserted that since the appeal was filed within 60 days from the date of knowledge of the order, the appeal as filed was within limitation. The Appeal Court, however, by judgment and order dated 19th December, 1986, dismissed the appeal on the sole reasoning that the appeal was time barred and the delay cannot be condoned. The Appeal Court recorded that there was clear proof that a notice of the proceedings in the Lower Court was served on the landlord. Against this decision, the landlord carried the matter in revision before the M.R.T. who in turn, has dismissed the same by the impugned judgment and order dated 27th June, 1989.

3. Before the revisional authority, it appears that a grievance was made on behalf of the landlord that the landlord had no intimation whatsoever regarding the decision passed by the Tahsildar and because of which he could not institute appeal within time. However, this contention has been rejected by the Appellate Court, on the reasoning that there are copies of letters indicating intimation of the decision of the case sent to the parties by registered post. In paragraph 6 of the impugned judgment, the revisional authority has also recorded that there are no receipts of registered A.D. available on record, but still went on to observe that it must be presumed that intimation was sent to the parties by the office of the Tahsildar. It is on this basis that the revision preferred by the landlord has been dismissed.

4. Having considered the rival submissions, I have no hesitation in observing that the appellate authority as well as the revisional authority have misdirected themselves in rejecting the appeal as preferred on behalf of the landlord on the ground that delay in filing the appeal cannot be condoned.

5. Taking the reason recorded by the appellate authority first, it is observed that there is clear proof that notice of the proceedings in the Lower Court was served on the landlord. That reason cannot be the basis of answering the issue against the petitioners. Assuming that the finding as recorded by the appellate authority that there was clear proof that notice of the proceedings was served on the landlord is correct, even then, it would be of no avail; because it is not in dispute that the proceedings was decided by the Tahsildar exparte against the landlord. In such a situation, by virtue of Section 20 of the Mamlatdars' Courts Act, 1906, the Tahsildar was obliged to give due notice of the decision to the landlord, who was not present before him during the proceedings, or, for that matter, on the day when the decision was pronounced.

6. To get over this difficulty, perhaps, the revisional authority has observed that it should be presumed that the intimation of the decision was sent to the parties by the office of the Tahsildar after the decision. Even this reasoning of the revisional authority is fallacious. There can be no difficulty in accepting the argument that intimation was sent by the office of the Tahsildar, but the question is: whether the Intimation has been duly served upon the landlord? With regard to that aspect, the revisional authority has clearly observed that there are no receipts of registered A.D. available on record. If there was no evidence to establish the fact that intimations sent by the Tahsildar has been duly served on the landlord, no presumption can be drawn in such a situation. Presumption could be drawn only when there was material on record to hold that the notice, as was sent by the office of the Tahsildar, has been received by the landlord, or, his duly authorised representative, or, that the notice is deemed to have been served on the landlord as per the provisions of law.

7. Understood thus, even the reasoning recorded by the revisional authority cannot be the basis to non-suit the landlord. The position that emerges is that ex parte decision was pronounced by the Tahsildar on 25th December, 1983, but no intimation thereof was received by the landlord, as alleged by the landlord, till 22nd July, 1985; and if the appeal has been filed on 20th August, 1985, obviously the landlord would be entitled to get the benefit of that position. Accordingly, the impugned judgments and orders passed by the appellate authority as well as the revisional authority are set aside and the appeal is restored to the file of the Sub-Divisional Officer, Thane Division, Thane, who is directed to decide the appeal on its own merits in accordance with law. All questions with regard to the merit of the petition are left open. It is made clear that the appellate authority shall not be influenced by any of the observations made by the revisional authority in the judgment, which is challenged before this Court.

8. Accordingly, this petition succeeds on the above terms. The appellate authority, on remand, shall decide the matter as expeditiously as possible, preferably within 6 months from the date of receipt of writ of this Court. Rule made absolute. No order as to costs.