WPMS/871/2019
2022 Latest Caselaw 620 UK

     IN THE HIGH COURT OF UTTARAKHAND
                          AT NAINITAL
             ON THE 8TH DAY OF MARCH, 2022
                                 BEFORE:
         HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI

           Writ Petition (M/S) No. 871 of 2019

BETWEEN:
Radha Krishna Kothari & others.                              ...Petitioners
      (By Mr. B.N. Molakhi, Advocate)


AND:
Krishna Kumar Kothari & others.                           ...Respondents
      (By Mr. Dinesh Chandra Gahtori, Advocate for respondent nos. 1 to 3,
      Mr. Lokendra Dobhal & Mr. Devang Dobhal, Advocates for respondent nos. 4, 5
      & 6, Ms. Anjali Bhargava, Advocate for respondent no. 8 & Mr. Yogesh
      Chandra Tewari, Standing Counsel for the State/respondent no. 9)



                               JUDGMENT

Heard learned counsel for the parties.

2. Petitioners' declaratory suit filed under Section 229-B of U.P. Zamindari Abolition & Land Reforms Act was decreed ex-parte by learned Assistant Collector, Ist Class, Tehri, vide judgment dated 27.05.2009. Respondent nos. 1 to 3, who were defendant nos. 1, 2 & 3 in said suit, filed an application under order 9 Rule 13 CPC with a delay condonation application. In the application under Order 9 Rule 13 CPC, it was asserted that plaintiffs got a false report submitted through the process server that whereabout of the applicants (defendant nos. 1 to 3 in the suit) is not known and the newspaper in which notice was published was Tehri Edition of Sah Times, whereas respondents are residents of Dehradun.

3. Learned trial Court rejected the application filed by respondent nos. 1 to 3 under Order 9 Rule 13 CPC, vide order dated 26.09.2016. Respondent nos. 1 to

3 challenged the rejection order by filing Revision, which was allowed by Commissioner Garhwal, vide judgment dated 07.08.2018.

4. Feeling aggrieved by judgment dated 07.08.2018 rendered by Commissioner, petitioners approached Board of Revenue, Uttarakhand, by filing Revision No. 236 of 2017-18. Learned Board of Revenue dismissed the revision filed by the petitioners, vide judgment dated 20.02.2019. Perusal of the judgment rendered by Board of Revenue indicates that observation made by learned Commissioner, which impinged upon merits of the case, was expunged.

5. In this writ petition, petitioners have challenged the judgment dated 07.08.2018 passed by Commissioner, Garhwal Division & judgment dated 20.02.2019 passed by Board of Revenue, Uttarakhand.

6. Heard learned counsel for the parties and perused the record.

7. Learned Commissioner has given cogent reasons for allowing the application filed by respondent nos. 1 to 3 for setting-aside ex-parte decree and restoring the suit. It has been held that sufficient cause was shown by the applicants/defendants for non- appearance before trial Court. Learned Board of Revenue also has considered and dealt with matter in great detail and given valid reasons for dismissal of revision filed by petitioners, therefore, this Court is not inclined to interfere with the judgment of Board of Revenue.

8. Courts of law are meant to do justice between the parties, and the justice has to be substantial, only then there will be peace and harmony in the society. One of the basic principles of law is that before deciding a dispute, the other side has to be heard. This principle

is now applicable even to administrative decisions, which affect rights of a person. It is also well settled that rules of procedure are handmaid of justice, which cannot be permitted to scuttle the course of justice. Thus viewed, a party who suffers an ex-parte decree, if satisfies the Court that he was prevented by sufficient cause from appearing in Court earlier, then his application should be allowed to ensure that case is decided after hearing both sides.

9. Respondent nos. 1, 2 & 3 had shown sufficient cause for setting-aside ex-parte decree passed against them, therefore, the justice oriented approach adopted by learned Commissioner and Board of Revenue cannot be faulted.

10. In such view of the matter, this Court does not find any reason to interfere with the judgment passed by learned Commissioner on the revision filed by respondent nos. 1, 2 & 3. Learned Board of Revenue rightly rejected the challenge thrown by petitioners to the judgment of learned Commissioner.

11. Even otherwise also, while exercising power under Article 227 of the Constitution, this Court cannot act as an Appellate Court over the judgment passed by learned Courts below, well within their jurisdiction.

12. Accordingly, writ petition fails and is dismissed. No order as to costs.

13. Learned counsel appearing for respondent nos. 1, 2 & 3 submits that his clients will file written statements before the trial Court, on or before 05.04.2022. Since the suit was filed in the year 2008, therefore, learned trial Court is requested to expedite hearing of the suit.

(MANOJ KUMAR TIWARI, J.) Navin