SHIVIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) HEARD learned counsel for the parties.

(2.) THE Suit No. 192/87 was filed in the court of Assistant Collector, Jodhpur by Mangilal and Oma Ram respondents No. 6 & 7 in this petition against Jawana Ram son of Simratha Ram, Shivia, Khema Ram sons of Deda Ram, Kewal Ram son of Simratha Ram and the State of Rajasthan. A written statement is purported to have been filed only on behalf of defendants No. 1 & 3 admitting the claim of the plaintiff. Petitioner No. 2 Khema Ram has denied to have filed any written statement by himself or by any other person authorised on his behalf because according to the petitioners notice of the suit was not, in fact, served on them. Be that, as it may, vide its judgment dated 15. 5. 89, the Assistant Collector, taking note of the fact of the written-statement having been filed only by two of the defendants and the absence of written-statement on behalf of other defendants, dismissed the suit filed by the plaintiffs. No appeal against the said dismissal of the suit was filed until 2. 7. 91 by the plaintiffs. As the appeal was filed more than two years after passing of the decree, the plaintiffs also moved an application under Section 5 of the Limitation Act. By the order dated 30. 08. 1991, the Revenue Appellate Authority found that no sufficient cause has been disclosed by the plaintiffs appellants, which prevented them from filing the appeal within time and rejected the application under Section 5 of the Limitation Act and also dismissed the appeal. THE petitioners had not appeared at that stage in the proceedings before the Revenue Appellate Authority. However, the plaintiffs moved an application for review of the order dated 30. 08. 1991, which came to be allowed by order dated 2. 12. 92 without issuing notice to the present petitioners. Aggrieved with the order dated 2. 12. 92, the petitioners preferred a revision petition No. 96/93 before the Board of Revenue. Before the revision could be decided, the Revenue Appellate Authority allowed the appeal filed by the plaintiffs on 30. 01. 1993 and decreed the suit of the plaintiffs by assuming that the written-statement has been filed by all the defendants admitting the claim of the plaintiffs. That was an apparent mistake on the part of the Revenue Appellate Authority in as much as it has been clearly mentioned in the order dated 15. 5. 89 that the written-statement has been filed only on behalf of the defendants No. 1 & 3 and no written-statement has been filed on behalf of the defendants No. 2, 4 & 5. THE present petitioners had preferred an appeal before the Board of Revenue against the judgment & decree dated 30. 01. 1993 in which the grounds challenging the order dated 2. 12. 92 were also taken. It is in the aforesaid circumstances that when the revision came up for hearing before the Board of Revenue on 6. 9. 94, the Board of Revenue taking note of the fact that subsequent to the passing of order dated 2. 12. 92, the appeal itself has been allowed by the Revenue Appellate Authority on 30. 01. 1993 and against the said judgment and decree the present petitioners have also preferred another appeal, dismissed the revision No. 96/93 as having become infructuous. THEreafter, when the appeal filed by the present petitioners came up for hearing before the Board challenging the order dated 2. 12. 92, it was argued by the learned counsel for the petitioners that the review petition has been allowed without issuing notice to them and it was also argued that the contention of the petitioners that after the review application was allowed on 2. 12. 92 and the order dated 30. 08. 1991 was set aside, the appeal was registered after condoning delay, notice of hearing of appeal was also not issued by the Revenue Appellate Authority and without hearing them, the same was allowed. However, keeping in view the fact that the present petitioners have not appeared before the Revenue Appellate Authority inspite of service when the order dated 30. 08. 1991 was passed and that a revision against that order has been dismissed as having been become infructuous the Board did not grant any relief to the petitioners against the order allowing the review application but set aside the judgment and decree dated 30. 01. 1993 and remanded the case back to the Revenue Appellate Authority to decide the appeal de novo after affording opportunity to the petitioners in accordance with law.

(3.) THE other ground, which has been raised by the learned counsel and which also found favour with the Board of Revenue because the petitioners had remained absent at the time when the order dated 30. 08. 1991, which was sought to be reviewed was passed, they are not entitled to any notice of the review is equally unsustainable. Order 41 Rule 4 C. P. C. is emphatic and clear in its terms when it prohibits any court from granting any application for review without previous notice to the opposite party to enable him to appear and to be heard in respect of the decree and order. This is a mandatory requirement and even in the absence of such provision, an order could not have been passed by any court without notice to the affected party. An adequate opportunity of hearing before making any order adverse to a party is the basic norm in a fair procedure required to be adopted by any court or adjudicating Tribunal. It is not in dispute that no notice of this application was given to the petitioners against whom the plaintiff respondents were seeking a decree by way of declaration of their joint Khatedari rights and partition thereof and thereafter seeking necessary correction in the revenue record on that basis. THE fact that while order dated 30. 08. 1991 was passed rejecting the application under Section 5 Limitation Act, is of little consequence as the said order was made in favour of the present petitioners and the order was not liable to be reviewed by the court unless conditions for reviewing the order were made out by the other party seeking review of the order. Whether such grounds for granting review are made out or not, they had nothing to do with the merits of the application under Section 5 of the Limitation Act. Those grounds, which had to be raised independently in the exercise of the discretion of the court for considering the application under Section 5 Limitation, were levelled for the first time in the application for review. THErefore, there is no reason to countenance the contention raised by the learned counsel for the respondents that because the earlier order was allowed to be passed ex party in favour of them, they were not entitled to a notice and opportunity of hearing when those orders in their favour were sought to be reviewed thereafter at their instance. THE procedure adopted by Revenue Appellate Authority was apparently contrary to Order 41 Rule 4 as well against basic principles of natural justice. Reliance placed in this connection on Lahore case is not well founded. That was a case in which the persons who were not served with the notice of the review application were proforma defendants and their interest was co-extensive with the plaintiffs as reversioners in a suit filed by some of the reversioners challenging the alienation made by limited estate holders. Thus the plaintiff had acted for the body of all the reversioners and the interest of the plaintiff and proforma defendants was coextensive. It is in the aforesaid circumstances that the court found that `in a suit by some reversioners for setting aside an alienation, a certain reversioner was made a pro forma defendant in the suit. . . . . His interest was sufficiently guarded by one of the plaintiffs reversioners. . . On appeal by the plaintiff against the order granting review, to which the pro forma defendant joined as appellants, it was contended by the pro forma defendant that no notice was given to them. THE court held that the pro forma defendant under such circumstances could not fall within the meaning of `opposite party' in Order 47 Rule 4 (2) (a) and therefore before granting of the review application notice was not necessary. " THE decision is not founded on the basis that because the party has remained ex parte, it is not entitled to notice, but on consideration of the facts, the party of the case who was only a pro-forma defendant was considered not to be an opposite party to whom notice was required to be served.