PURSHOTTAM VOIRO GAONKAR Vs. GANABA B. DESAI

JUDGEMENT

(1.) Heard Mr. A. Borkar, learned counsel appearing for the petitioner. None for the respondents though served. Notice was issued to the respondents that the petition may be disposed of finally at the stage of admission. Rule. Heard forthwith.

(2.) The short point for consideration in the above petition is whether the learned Reference Court was justified to dismiss the application filed by the petitioner to set aside the award dated 07.06.1999 on the ground that though the petitioner did not appear at the time of the hearing of the reference proceedings it could not be considered to be an ex parte award and as such, the application was not maintainable.

(3.) Briefly the facts of the case as stated in the petition are that the reference was made under Section 30 of the Land Acquisition Act for adjudicating the claim of the petitioner as well as the respondents in connection with the acquisition made of the property surveyed under No. 78/1 of Chapoli Village. In the said proceedings, the matter was posted for hearing on 05.08.1998 when the Presiding Judge rescued from the matter for the reasons stated therein and the case was posted to 22.08.1998. It is stated by the petitioner that on the said date, the petitioner appeared and the matter was not taken up as necessary orders were not passed to transfer the matter to the learned Additional District Judge. The petitioner was under impression that the date of the hearing would be communicated. According to the petitioner, he learnt from another Advocate somewhere on 07.06.1999 that an award was already passed in the said Land Acquisition Proceedings. When the petitioner perused the records, he learnt that the matter was posted on 22.09.1998 when none of the parties appeared and adjourned to 22.10.1998. On the said date, nobody appeared for the parties and the matter was adjourned to 04.12.1998. On the said date, some of the parties appeared and the petitioner failed to appear as he was not informed nor intimated the fresh date of the hearing of the reference proceedings and as such the said proceedings were ex parte. As far as the petitioner is concerned, an application was filed by the petitioner on 14.06.1999 to recall the award passed in his absence. The said application came to be rejected on 25.08.2004 as the provisions on which the application was filed was not disclosed by the petitioner. Immediately, thereafter, an application was filed by the petitioner under Order 9, Rule 13 of the Civil Procedure Code along with application for condonation of delay to set aside the ex parte award. The respondents raised objection to the said application and ultimately by the impugned order dated 02.08.2006, the application for condonation of delay as well as the application to set aside the award came to be dismissed by disposing of the said applications. The learned Judge found that as no ex parte order was passed against the petitioner the question of setting aside the ex parte award does not arise. Being aggrieved by the said order, the petitioner has preferred the above petition.