SURESH Vs. U P BOARD OF REVENUE

JUDGEMENT

(1.) In this petition the only controversy is whether the Board of Revenue was justified in rejecting the revision of the Petitioner on 21st September 1977, under Order 41, Rule 18, Code of Civil Procedure for non -filing of process fee and notices for service on the opposite parties and further whether it was justified in rejecting the restoration application by its order dated 5th December, 1978. Notices of the date fixed were sent both to the Petitioner and the Counsel who appeared on his behalf in the Additional Commissioner's Court. It has been found that only the latter was served. The Petitioner came to know when he received notice on 15 -5 -1978 that his revision had been dismissed on 21 -9 -77 for non -filing of process fee. He immediately obtained copy and applied for restoration on 31 -5 -78 which was dismissed as the Petitioner had failed to explain each day's delay. Further the allegation of illness was not supported by any medical certificate.

(2.) Both the orders passed by the Board of Revenue appear to suffer from manifest error of law. Dismissal of the revision application on 21 -9 -77 without any intimation to Petitioner was against rules. As the notices had returned undelivered for want of correct address it was incumbent on the Board to send fresh notices for service on Petitioner. But the Board instead of sending fresh notices dismissed the revision as, 'his Counsel has received' the intimation and, 'both of them were absent'. Learned Counsel for the opposite parties also supported the order on this finding and urged that service on Counsel amounted to service on Petitioners. Therefore, it shall be deemed that Petitioner was served or in any case he had intimation and the Board committed no error in dismissing the revision. The argument is only partly correct. It cannot be disputed that service on Counsel is normally sufficient. Whether it was sufficient so as to entail dismissal of the revision had to be examined on the facts and circumstances. But this cannot be accepted sufficient in references which came to Board of Revenue on recommendation of Additional Commissioner unless it is further established that the Counsel after receiving the notice from Board not only sent information to his client but it was received. What happens that after revisions are decided by the Additional Commissioner, who under the rules is only empowered to recommend it to the Board of Revenue, the client files his objection against the recommendation through the local Counsel as that has normally to be done within thirty days and he cannot know whether within that period the file has reached in the Board. After the reference is directed to be listed by the Board intimation is sent both to the Counsel and client. The practice of sending notice to both is not by way of abundant caution but based on practical reality and sound principles that the case having come from the district the client might have lost his touch with the Counsel yet he having filed appearance and objection the notice should be sent to him as well. But in a case where the client is not served and there is no material on record to show that the Counsel who had been served had not only intimated the client but that he had received the confirmation the revision cannot be dismissed for non -appearance. In the circumstances the order dated 21 -9 -1977 cannot be maintained.

(3.) If order dated 21 -9 -77 goes, the order dated 5th December, 1978, dismissing the application of the Petitioner for restoration automatically falls through. Even otherwise the order dated 5th December, 1978, on its own cannot stand. The Board having found that intimation of dismissal of revision was served on the Petitioner on 15th May, 1978, the limitation for restoration application would be counted from that date. From this the period during which application for certified copy was pending should have been excluded. If this period is excluded, then obviously the delay was for only one day as restoration application was filed on 31 -5 -78 and it was not necessary for the Petitioner to explain it by filing any medical certificate etc.