BALWINDER KAUR Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) HEARD learned counsel for the parties. The petitioner by way of the present petition under Articles 226/227 of the Constitution of India seeks quashing of the order dated 4.2.2004 (Annexure- P.3) passed by the Collector, Faridkot (respondent No. 3), the order dated 23.1.2008 (Annexure-P.4) passed by the Commissioner, Faridkot Division, Faridkot (respondent No. 2) and the order dated 26.8.2008 (Annexure-P. 6) passed by the Financial Commissioner (Appeals-I), Punjab (respondent No. 1).

(2.) RESPONDENT Nos. 5 to 12 filed a suit against the petitioner and proforma respondents for recovery of share of produce on the ground that they are owners of land measuring 18 Kanals. It was alleged that Sukhwinder Singh (respondent No. 37), Uttar Singh (respondent No. 38) and Balwinder Kaur (petitioner) were cultivating 6 Kanals 3 Marlas of land which was in excess of their share in the land. It was also alleged that Sukhwinder Singh etc. (respondents Nos. 37 and 38 and the petitioner) had purchased the said 6 Kanals 3 Marlas of land from co-sharer Jangir Singh (respondent No. 21). The share of produce was not being paid by them and, therefore, respondent Nos. 5 to 12 claimed that they were entitled to share of produce from Kharif 1992. The petitioner as also respondents No. 37 and 38 were proceeded against ex parte. The suit of respondent Nos. 5 to 12 was decreed by the Assistant Collector Ist Grade, Faridkot vide judgment and decree dated 16.4.2002 (Annexure-P.1) holding that respondent Nos. 5 to 12 were entitled to recover Rs. 26,258/- i.e. 1/3rd share which was considered produce from Sukhwinder Singh (respondent No. 37), Uttar Singh (respondent No. 38) and Balwinder Kaur (petitioner). The petitioner on coming to know of the ex parte judgment and decree dated 16.4.2002 (Annexure-P.1) along with respondent Nos. 37 and 38 filed an appeal before the District Collector, Faridkot. The said appeal was accepted by the District Collector vide judgment and decree dated 25.8.2003 (Annexure P.2). While allowing the appeal it was directed by the learned District Collector that the appellants i.e. respondent Nos. 37 and 38 and the petitioner shall fix the requisite court-fees with the appeal. According to the petitioner, no time period was fixed for payment of the court-fees. Thereafter, on 1.12.2003, Jagtar Singh (respondent No. 5) filed an Application before the District Collector, Faridkot mentioning therein that he appellants Sukhwinder Singh etc. had not filed the requisite court-fees in terms of order dated 25.8.2003 (Annexure-P2). A notice of the said application was given to the counsel for the appellants but despite service he did not appear. Accordingly, ex parte proceedings were initiated. The learned Collector vide order dated 4.2.2004 (Annexure-P.3) dismissed the Appeal of the petitioner and respondents No. 37 and 38 for non-compliance of the Court order dated 25.8.2003 (Annexure-P.2) with regard to payment of court-fees. Aggrieved against the said order, the petitioner as also respondents No. 37 and 38 filed a revision petition before the learned Commissioner, Faridkot Division, Faridkot. It was stated that they were never summoned by the learned Collector before the passing of the order dated 4.2.2004 (Annexure-P.3). The learned Commissioner vide order dated 23.1.2008 (Annexure-P.4) held that the Collector had summoned the appellants i.e. the petitioner as also respondent Nos. 37 and 38 but they did not appear. Accordingly, the revision petition of the petitioner and respondent Nos. 37 and 38 was dismissed by the learned Commissioner vide order dated 23.1.2008 (Annexure-P.4). The petitioner dissatisfied with the orders dated 4.2.2004 (Annexure-P.3) and dated 23.1.2008 (Annexure-P.4) filed a revision petition under Section 84 of the Punjab Tenancy Act, 1887 ('Act' for short) before the Financial Commissioner. It was pleaded that once the case was remanded to the learned Assistant Collector 1st Grade, there was no necessity to pay the court-fees and if the same had been paid with the memorandum of appeal the same was liable to be refunded as per Section 13 of the Court-fees Act, 1870. It was further stated by the petitioner that if otherwise the Court came to the conclusion that the petitioner was required to pay Court-fees in terms of order dated 25.8.2003 (Annexure-P.2), the petitioner undertakes to pay the same within the stipulated period. The said revision petition was, however, dismissed by the Financial Commissioner in limine vide order dated 26.8.2008 (Annexure-P.6). The petitioner aggrieved against the same has preferred the present petition.

(3.) LEARNED counsel for the petitioner contends that after the passing of the order dated 25.8.2003 (Annexure-P.2) by the learned District Collector, the notice is stated to have been given to their counsel who did not inform the petitioner otherwise the petitioner would have deposited the necessary Court- fees. It is further submitted that the petitioner is not liable to be non- suited for non-payment of Court-fees and her cause is liable to be heard on merit.