M CHAND Vs. PIUS SWAMI

JUDGEMENT

(1.) This second appeal was filed against the judgment of the learned District Judge, Mandi and Chamba Districts, dated 14th March, 1966, in Civil Miscellaneous Appeal No. 105 filed on 3rd October, 1964, by which the learned District Judge dismissed the said appeal and confirmed the order (judgment) of the Compensation Officer, Mandi, dated 7th September, 1964 rejecting an application filed by 0m Chand, the appellant herein, for sotting aside an order of dismissal of an earlier application filed by him ior setting aside an order proceeding against (setting ?) him ex parte in a proceeding before the Compensation Officer.

(2.) The facts which led up to this second appeal may be stated briefly. The respondent herein Plus Swami, is the nephew of 0m Chand, the appellant berein. The respondent filed an application under Section 11 of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act 1953. (hereinalter referred to as "the Abolition Act") for acquisition of proprietary right? in Khasra Nos. 13,15 and 16. The said application was allowed (ordered ?) by the Compensation Officer. Against that order, 0m Chand, the appellant herein, preferred an appeal, and the appelate Court remanded the case on 12th April, 1962. After the remand, the file got burnt, and the respondent herein filed an application for the reconstruction of the file and the granting of the proprietary rights. Notice was given to the appellant herein to file a copy of his original objections to the application under section It of the Abolition Act. On 5th March, 1964, the appellant's counsel was present, and he was directed to file the said copy of the objections by 21st April, 1964. On 21st April, 1964, the appellant as well as his counsel were absent, and therefore the Compensation Officer ordered the proceedings to continue exparte. On the same date, at about 4.30 P.M. the learned counsel for the appellant filed an application praying that the exparte order may be set aside. It was stated in the said application that the case was fixed for that date for the appearance of the respondent .'appellant herein) in the application under section 11 of the Abolition Act, that the said respondent had engaged a counsel, but on account of "a short absence for a few minutes on the part of the clerk of the counsel, the case was called and proceeded ex-parte", that the absence was not intentional and may be excused, and that the order directing ex-parte proceedings may be set aside. This application was supported by an affidavit of the clerk of the counsel. There is an endorsement on the said application that the application was fixed for 30th April, 1964.

(3.) On 30th April, 1964, the appellant herein and his counsel were, both absent, and the respondent herein alone was present, with the result that the appplication filed on behalf of the appellant herein on 21st April, 1964, was directed to be consigned to the record-room. Then, on 1st May, 1964, another application was filed by the appellant herein. It ran as under :- "In the Court of:-Compensation Officer. Mandi., In the matter of:- Pius Swami. versus Om Chand, Application u/s 11 of Big Landed Abolition Act. Application under 0.9 rule 7 Civil Procedure Code for setting an ex-parte order and permitting (?) Editor. the defendant -non-applicant to participate in the proceedings. Sir, The applicant/respondent begs to submit :- 1. That in the aforesaid application, some documents are demanded from the applicant for which purpose it is fixed for 1st May, 1964, before this learned Court. 2. That on 30th April, 1964 the day when it was originally fixed, respondent by the morning bus had come from Saikaghat and having reached a bit late, the case was called in the routine, nay, earlier and the respondent had no time to put his appearance. 3. That there is very good ground for permitting the respondent to put in his appearance and participate in the proceedings of the application which is at its initial stages. It is therefore prayed that the respondent be kindly permitted to participate in the application wherein no proceedings have been conducted so far. The applicant/respondent shall ever pray. Sd./. Respondent. Through Manohar Lal Advocate, 1st May, 1964." It was, thus, an application for setting aside the order dated 30th April, 1914, and for permitting the appellant herein to participate in the application under Section 11 of the Abolition Act. This second application was heard by the Compensation Officer, and by an order dated 7th September, 1964, the Compensation Officer dismissed the said application on the ground that the said application for restoration of an earlier application filed to set aside an earlier ex parte order was not maintain' able. Against that order of the Compensation Officer, the appellant berein filed an appeal Civil Miscellaneous Appeal No. 105, in the Court of the District Judge, Mandi, under Section 104 of the Abolition Act. This appeal was heard by the learned District Judge, and by his judgment dated 14th March, 1966, he dismissed the appeal agreeing with the view of the Compensation Officer that the second application was not maintainable. He also held that even though the provisions of Older 9 of the Code of Civil Procedure do not apply to the application in question, every tribunal has inherent power to set aside an ex-parts order passed by it, but that the same should be exercised juridiciously, and that in the present case the appellant herein was negligent, and knowingly remained absent so as to delay the proceedings and was will. fully prolonging the proceedings with an ulterior motive, and that, therefore, it was not a case for the exercise of the inherent power either by the Compensation Officer or by the appellate Court. It is against this judgment that the present second apppeal has baen fih-L