Rita Choudhrie And Anr. vs Samtya Dev And Anr.
2003 Latest Caselaw 1290 Del

JUDGMENT

R.S. Sodhi, J.

1. This petition is directed against the order of the Deputy Commissioner and Additional Collector, North, in Appeal No. 10/98, whereby the Additional Collector has dismissed the appeal of the petitioner on the ground that no appeal lies from the impugned order.

2. The brief facts of the case as noted by the Deputy Commissioner and Additional Collector, North, are as follows :

" The background of the case is as follows. Satya Dev (herinafter referred to as "Party No. 1") filed a petition under Section 85 of the the Delhi Land Reforms Act, 1954 against Rita Choudharie and Sudhir Choudharie (both are jointly hereinafter referred to as "Party No. 2") for declaring him as Bhumidar of the land comprised in Khasra No. 6/21/1 (2-16) and 6/21/2 (2-0) situated in the revenue estate of Village Burari, Delhi belonging to Party No. 2. Due to absence of party No. 2, the case was ordered to proceed ex-parte agianst them by the SDM/Revenue Assistant vide order dated 16-11-93. Subsequently, the evidence of Party No. 1 was recorded. The Party No. 1 even filed written arguments in support of his case on 09-10-98. On 14-10-98, Party No. 2 moved an application under Appendix VI Rules 12 and 14 of Delhi Land Reforms Rules, 1954 read with Section 151 CPC for setting aside the order dated 16-11-93. They stated that they were not aware of the pendency of the proceedings in the Court of SDM/Revenue Assistant and became aware of it only on 07-10-98. Thereafter, they engaged a counsel who moved an application for inspection, which was allowed. On inspection of the file, it was found that one Vakalatnama purported to be signed by Party No. 2 was filed by Sh.Rohtas Singh Dabas, Advocate on 19-05-87 before the then SDM. However, the presence Sh.Dabas was not marked in the proceeding sheets on any of the days. It was the case of Party No. 2 that Sh.Dabas was not engaged by them to appear before the Revenue Assistant to represent them in the said case. They stated that he was engaged by them to file petitions for ejectment under Section 84 of Delhi Land Reforms Act, 1954 and it appears that Sh. Dabas got one signed Vakalatnamas from Party No. 2 and one of the said Vakalatnamas had been filed in this case. They claimed that Sh. Dabas acted in collusion with the petitioner, which is proved by the fact that the dismissals of the petitions under Section 84 were also not informed to them. Party No. 2 stated that the Revenue Assistant erred in proceeding ex-parte against them on 16-11-93 on the basis of the report of the process server which was related to the notice for the hearing hearing on 14-09-93. It is also their case that the service, through passing of notice, was incorrect since the order passed on 12-03-93 stated that the notice be pasted only in case the Party No. 2 refuse to accept the same, which was not followed by the process server. It was also their case that the Court directed issue of fresh notices to both parties on 16-09-96, which automatically ended the order to proceed ex-parte. Party No. 2, therefore, requested that the order dated 16-11-93 be set aside and they may be permitted to take part in the proceedings and contest the case on merit. Party No. 1 filed a reply claiming that the Party No. 2 was well aware about the said proceedings. It was his case that the ejectment petitions filed by Party No. 2 were listed for hearing before the Revenue Assistant on the same dates as the petition under Section 85 in question. He also informed that he had filed application dated 11-05-87 under Section 151 CPC for consolidation of the cases between the parties in both the ejectment petitions filed by Party No. 2 and in the said applications it was disclosed that he had filed petition under Section 85 of Delhi Land Reforms Act. He also contested the claim of Party No. 2 to have sufficiently explained the delay in applying for setting the order aside. The learned Revenue Assistant heard both the parties and vide order dated 16-12-98 (hereinafter called the "impugned order") set aside the order dated 16-11-93 with the condition that Party No. 2 shall be allowed to join the proceeding with prospective effect. Both the Parties have separately come in appeal against the impugned order, which have been registered as appeal nos. 10/98 and 1/99 respectively."

3. The appeal of party No. 1 was dismissed and became final. It is the appeal of party No. 2 which the Additional Collector has dismissed as not maintainable. Being aggrieved thereof, petitioners moved this petition under Article 227 of the Constitution.

4. It is contended by learned counsel for the petitioners that his application under Order 9 Rule 7 CPC was allowed by the SDM but did not relegate the petitioners to the position as on the date fixed for appearance. He contends that the Additional Collector in his order has noted that:

"The proceeding sheets prior to May, 1988 are not available on record in the trial Court file. Hence, it is not possible to find out whether the present of Rohtas Singh Dabas on 19-05-87 was taken on record by the trial Court on that day or subsequently.

12. However, a perusal of the trial Court file shows that no proceedings took place between 23-12-88 to 05-06-90. On 5-06-90, it was ordered that fresh notices be issued to both parties. On 12-03-93, the Revenue Assistant directed that the summons be issued to Party No. 2 and the notices be pasted in case they refused to accept them. The case was adjourned to 29-04-93. However, the case was not head between 29-04-93 till 16-11-93. On 16-11-93 the Revenue Assistant recorded that the notice to Party No. 2 was served by pasting, as per report of process served available on file. He, therefore, directed that the case be proceeded ex-parte and fixed the case for evidence of Party No. 1 on 16-02-94."

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14. No evidence is available on record whether the Party No. 2 were aware of the proceedings from 05-06-90 onwards. The Party No. 1 has also not been able to prove anything in this regard. In the light of this fact, the Revenue Assistant was correct in not rejecting the application dated 14-10-98 on Party No. 2 for setting aside the order dated 16-11-93." yet dismissed the appeal on the ground that paragraph 14 of Appendix VI was a bar.

5. Counsel for the respondent submits that no petition under Article 227 of the Constitution lies in view of the fact that an appeal lies from an order of the Additional Collector to the Financial Commissioner under clauses 23 and 25 of Appendix VI.

6. Having heard counsel for the parties and having perused the judgment under challenge as also the material on record, I am of the view that petition under Article 227 of the Constitution is maintainable since there is a bar to an appeal under paragraph 14 of Appendix VI, no further appeal would lie to the Financial Commissioner. In this view of the matter, recourse available to the petitioners was under article 227 of the Constitution.

7. There is no gainsaying that the SDM allowed the application of the petitioners under Order 9 Rule 7 CPC vide its order dated 16th December,1998 but failed to note that under Order 9 Rule 7 CPC, the petitioners should have been relegated to a position as on 16th November, 1993, when the petitioners were proceeded with ex parte. A bare reading of Order 9 Rule 7 CPC shows that the petitioners should have been relegated to the position as on date when they were proceeded ex parte and allowed to join proceedings there from.

8. In view of the above, I set aside the judgment and order dated 30th November, 1999, of the Deputy Commissioner and Additional Collector, North, and modify the order of the SDM to the effect that the petitioners shall be permitted to join proceedings as were on 16th November, 1993.

9. With this CM(M) 33/2000 is allowed.