U.T. CHANDIGARH Vs. BACHNA AND ORS.

JUDGEMENT

(1.) THE short but significant question that arises for consideration in this case is as to how for the cross objections filed by the two objectors, namely, Bhag Singh and Bachnna, under Order 41, Rule 22, Code of Civil Procedure (In R.F.A. No. 154 of 1980 filed by the Union, of India against these two objectors and their brothers) are within limitation. The facts leading to this controversy are as follows:

(2.) THE land of the objectors along with that of their co - sharers and brothers, namely, Bachna and Harbans, situated in village Atawa, was acquired by the Chandigarh Union Territory Administration along with some other land of various landowners for the development of a part of Sector 43 of the city. On a reference sought by these four brothers under Section 18 of the Land Acquisition Act (for short, the Act) the Land Acquisition Court, Chandigarh, - -vide the impugned judgment, enhanced the rate of compensation of the acquired land to a flat rate of Rs. 36,000 per acre, as against the highest rate of Rs. 21,000 per acre awarded by the Land Acquisition Collector for the best quality of land, that is Chahi Land. The Chandigarh Administration has made a grouse of this enhancement and has filed the above -noted regular first appeal. On admission of this appeal, a notice was ordered to be issued by this Court on January, 17, 1980 to the four Respondents, that is, the objectors and their brothers. In pursuance of this order, notices were issued to these Respondents on August 20, 1980, returnable for September 22, 1980. Notices are alleged to have been served on these two objectors on September 1, 1980, though they, - -vide Civil Misc. No. 1529 -C.I. of 1980 have disputed the genuineness of the service and the correctness of the report of the process -server on the plea that they have been living away from village Atawa - -the village in which they are alleged to be the residents as per address mentioned in the notice for the last more than one year and the bogustity of the thumb impressions obtained by the process -server in token of his having served the notices on them. This assertion might have called for a deeper probe and a serious view but I feel, that is unnecessary in this case in view of the legal contention which has been raised by their learned Counsel.

(3.) MR . Chhibbar, learned Counsel for the Appellant, however, contends that in case the service of the notice on the objectors on September 1, 1980, is taken as good service, then this at least is established that they had come to acquire the knowledge of the pendency of the appeal and according to him, in view of the judgments in Gottimakkula Chetti Venkataraju v. Gottemakkula Ramabhaddrirraju and Ors. : A.I.R. 1942 Mad 403, Labhu Ram and Ors. v. Ram Partap and Ors. : A.I.R. 1944 Lah 76 (F.B.), and Chennama Shettithi and Ors. v. Krishnayya Setti and Ors., A.I.R. 1916 Mad 734, such a knowledge is good enough to make the period of limitation run against them. I find that this submission of the learned Counsel is not well -founded. Firstly, the service of a notice informing about the date fixed for hearing the appeal is not, to my mind, enough unless it is also proved that the memorandum of appeal was also served on the Respondent and thus he had knowledge about the scope of the appeal against him. In fact the accompanying of such a memorandum of appeal with the notice to be served has been made mandatory by the provisions of Sub -rule (3) of Rule 10 of Order 41. In the present case undisputably there is neither any record nor any proof about the sending or the receipt of the memorandum of appeal with the notices. Secondly, I find that none of the authorities referred to above helps the Appellant. None of these authorities deals with the content or the form of the notice which is required to be served on a Respondent to make the period of limitation run against him in terms of Order 41, Rule 22 Code of Civil Procedure. On the other and there is a direct Division Bench judgment of the Madras High Court in Kancherla Pushkaramba and Anr. v. Kancherla Nagaranamma : A.I.R. 1926 Mad 283, which clearly supports the stand of the learned Counsel for the objectors. After making a reference to the form of notice (6 -A) appended to Order 41 -A, Schedule I, as made by the High Court of Madras, it was observed by the learned Judges that the actual notice then in use could not be construed as fixing a day for hearing by implication. I feel it is worthwhile to make a detailed reference to the facts and the conclusion recorded, in that case. The same are reproduced as follows: