Union Of India vs Rammilan
2023 Latest Caselaw 6645 MP

                                                             1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                                                ON THE 25 th OF APRIL, 2023
                                               MISC. APPEAL No. 3144 of 2021

                          BETWEEN:-
                          UNION OF INDIA THROUGH DIVISIONAL MANAGER,
                          WEST CENTRAL RAILWAY, BHOPAL (MADHYA
                          PRADESH)

                                                                                           .....APPELLANT
                          (BY SHRI ASHOK SINHA - ADVOCATE)

                          AND
                          1.    RAMMILAN S/O LATE BHAROSA PATEL, AGED
                                ABOUT 70 YEARS, R/O VILLAGE JIGDAHA TAH
                                DEVENDRA NAGAR DISTT. PANNA (MADHYA
                                PRADESH)

                          2.    SUB DIVISIONAL OFFICER, REVENUE AND LAND
                                ACQUISITION OFFICER, PANNA, DISTT. PANNA
                                (MADHYA PRADESH)

                                                                                       .....RESPONDENTS
                          (SHRI MUKUND AGRAWAL - GOVERNMENT ADVOCATE FOR
                          RESPONDENT NO.2/STATE)

                                Th is appeal coming on for hearing this day, t h e court passed the
                          following:
                                                              ORDER

This miscellaneous appeal under Order 43 Rule 1(d) of CPC has been filed against the order dated 28.10.2021 passed by First Additional District Judge Panna, District Panna in MJC No.34/2021 by which the application filed by the appellant under Order 9 Rule 13 of CPC has been rejected.

2. The facts of the case in short are that certain land was acquired for the

Signature Not Verified benefit of the appellant. The award was passed by Land Acquisition Officer. Signed by: VARSHA CHOURASIYA Signing time: 4/27/2023 12:37:15 PM

Being dissatisfied with the quantum of compensation fixed by the Land Acquisition Officer, respondent No.1 filed an application for reference under Section 64 of Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act. The appellant was made as a party by describing it as State of Madhya Pradesh through Deputy Chief Engineer, West Central Railway, Bhopal and was proceeded ex parte and an ex parte award was passed. Thereafter, the appellant filed an application under Order 9 Rule 13 of CPC for setting aside ex parte award. The said application has been rejected by the Court below by order dated 28.10.2021 on the ground that in the light of the judgment passed by the Supreme Court in the case of

Rajmani v. Collector, Raipur reported in (1996) 5 SCC 701, an application under Order 9 Rule 9 of CPC would be maintainable and not Order 9 Rule 13 of CPC. Accordingly, it was held that since the appellant has filed an application under Order 9 Rule 13 of CPC, therefore, the said application is not maintainable and the same was dismissed.

3. Challenging the impugned order dated 28.10.2021, it is submitted by Shri Ashok Sinha that even in the judgment passed in the case of Rajmani (supra) the Supreme Court has held that an application filed under Order 9 Rule 13 of CPC can be treated as an application under Order 9 Rule 9 of CPC. Therefore, the Court below committed a material illegality by not treating the application as under Order 9 Rule 9 of CPC.

4. Per contra, the counsel for respondent No.1 tried to convince this Court that Shri R.K. Nigam, Advocate had appeared on behalf of the State of Madhya Pradesh through Deputy Chief Engineer, West Central Railway, Bhopal and sought time to file Vakalatnama. Ultimately he did not file the Vakalatnama, Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 4/27/2023 12:37:15 PM

therefore, the appellant was proceeded as ex parte.

5. In reply, it is submitted by Sinha that Shri R.K. Nigam, Advocate was not in the Panel of Union of India or Indian Railways. Therefore, any undertaking given by him is not binding on the appellant.

6. Heard the learned counsel for the parties.

7. Whether Shri R.K. Nigam, Advocate was competent to give an undertaking on behalf of the appellant or not is a stage which is yet to come. The application filed by the appellant was rejected on a technical issue that the same is not maintainable under Order 9 Rule 13 of CPC. However, the Court below lost sight of the observation made by the Supreme Court in the case of Rajmani (supra) that if an application is filed under Order 9 Rule 13 of CPC then the same can be treated one under Order 9 Rule 9 of CPC. Here is a case where admittedly the appellant was misdescribed in the reference proceedings.

8. The Indian Railways comes under the Union of India whereas the Indian Railways was made a party as a functionary of the State of Madhya Pradesh. Further, State of Madhya Pradesh was made a party through Deputy Chief Engineer, West Central Railway, Bhopal. Indian Railways is not a Department of State of Madhya Pradesh. Therefore, viewed from every angle, it is clear that the appellant was misdescribed in the reference proceedings.

9 . N o w the only question for consideration is that in spite of

misdescription whether the appellant was served or not and whether Shri R.K. Nigam, Advocate was competent to give any undertaking on behalf of the appellant or not?

10. Since the application filed under Order 9 Rule 13 of CPC is to be treated as an application under Order 9 Rule 9 of CPC and it is yet to be decided on merits, therefore, this Court think it appropriate to remand the Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 4/27/2023 12:37:15 PM

matter. Accordingly, this appeal is disposed of with the following directions:

(i) The Reference Court is directed to consider the application filed by the appellant under Order 9 Rule 13 of CPC as an application under Order 9 Rule 9 of CPC.

(ii) The said application shall be decided on merits.

(iii) If the Reference Court comes to a conclusion that the appellant was never served with the notice and Shri R.K. Nigam was not competent to give any undertaking on behalf of the appellant, then it shall take the decision in accordance with law.

11. Let the entire exercise be completed within a period of 60 working days from the date of production of certified copy of this order.

12. If the application filed under Order 9 Rule 9 of CPC is allowed, then the Reference Court is directed to positively decide the reference within a period of four months thereafter.

13. If the application under Order 9 Rule 9 of CPC is allowed, then the appellant shall file its written statement positively within a period of 15 days from the date of restoration of the reference to its original file.

14. Needless to mention that if so required, the Reference Court may proceed on day to day basis.

15. The parties shall appear before the Reference Court on 08.05.2023 and shall file the certified copy of this order before the said Court.

16. The office is directed to immediately send a copy of this order to the Reference Court for necessary information and compliance.

17. With aforesaid observations, the case is finally disposed of.

Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 4/27/2023 12:37:15 PM

(G.S. AHLUWALIA) JUDGE vc

Signature Not Verified Signed by: VARSHA CHOURASIYA Signing time: 4/27/2023 12:37:15 PM