MOHD. BASHIR Vs. MAQSOOD

JUDGEMENT

(1.) THROUGH the present petition under Articles 226 of the Constitution of India the petitioner has prayed for issuance of a writ in the nature of certiorari quashing the orders dated 17.7.2002 (Annexure P6) passed by the Financial Commissioner, Haryana; 17.2.2002 (Annexure P5) passed by the Commissioner, Gurgaon Division; as well as the order dated 1.9.1998 passed by the Assistant Collector Ist Grade whereby the petitioner was ordered to be proceeded against ex parte and also the order dated 7.10.1998 (Annexure P3) ordering ex parte proceedings against the petitioner.

(2.) BASHIR petitioner is the uterine brother of Masqood (respondent No. 1), Ayub deceased and Mehboob deceased as all the four are sons of Allabux from two mothers. Ayub and Mehboob are represented by their legal representatives in the present petition. Masqood filed an application for partition of the land measuring 133 Kanals 5 Marlas situated in village Rama Khaira, which is the joint property of the four brothers. The Assistant Collector Ist Grade, Punhana, District Gurgaon, issued one common summons for the appearance of Bashir petitioner as well as Ayub and Mehboob (now deceased). However, the Process Server made a report that he along with the Sarpanch of the village went to make service of the summons on them, but they refused to accept the summons though all the three were present at their house. The Process Server also reported that one copy of the summons was pasted on the house. Thereafter the service through proclamation was ordered by the A.C. Ist Grade for their appearance on 1.9.1998. Thereon also the Process Server made a report that the proclamation was got done by him for the date fixed in the case through Chowkidar Jeet Ram. In view of these reports made by the Process Server, the A.C. Ist Grade ordered the petitioner to be proceeded against ex parte vide order dated 1.9.1998 (Annexure P3). On coming to know about the ex parte proceedings having been launched against him with regard to the partition of the joint property, the petitioner filed an appeal in the Court of Collector, Ferozepur Jhirka, and prayer was made for setting aside the ex parte order dated 7.10.1998 passed by the A.C. Ist Grade along with all the partition proceedings. After hearing the counsel for the parties, the Collector vide order dated 27.12.1999 (Annexure P4) while observing that the whole partition proceedings were completed within three months, set aside the order dated 7.10.1998 passed by the A.C. Ist Grade along with all the ex parte proceededings launched against the petitioner. On appeal filed by Masqood (respondent No. 1), the Commissioner, Gurgaon Division, vide order dated 17.1.2002 (Annexure P5) set aside the order passed by the Collector and restored the ex parte order passed by the A.C. Ist Grade by observing that the instrument of partition had already been issued on 24.11.1998. The revision petition filed by the petitioner in order to challenge the order passed by the Commissioner was dismissed by the Financial Commissioner, Haryana, vide order dated 17.7.2002. Now the petitioner has filed this petition wherein prayer has been made for quashment of the orders passed by the A.C. Ist Grade, Commissioner and the Financial Commissioner on the ground that the Process Server had made wrong reports and the petitioner had never refused to accept the summons.

(3.) THE contention raised by the learned counsel for the petitioner have vehemently been controverted by Mr. G.S. Nagra, learned counsel appearing on behalf of the respondents.