RAM SINGH Vs. SAMLA

JUDGEMENT

(1.) This is an appeal against the order of the learned Sub -Divisional Officer, Bharatpur dated 20th November, 1961 by which he has accepted a review petition against his order dated 26th May, 1960 in a case for correction of entries in the village revenue records.

(2.) The appellant preferred an application under sec. 136 of the Rajasthan Land Revenue Act, 1956 (hereinafter referred to as the Act). The respondent Samla was held not to have appeared despite notice and the case was ordered to proceed ex parte. On the basis of the evidence produced by the appellant, the correction applied for was ultimately granted on 26th May, 1960. The respondent Samla preferred a petition for reviewing that judgment on the ground that no proper service of the summons of the application preferred by the appellant had been made on him. It was found that notice of date 6th April, 1960 (the first date of hearing in the proceeding) was served not on the respondent personally nor on his authorised agent or lawyer nor on any adult member of his family but was affixed on his house when he was not present in the village but had gone out to some other village. The learned Sub -Divisional Officer, therefore, held that there had been a breach of the provision of secs. 59 and 60 of the Act and therefore a "fraud upon the procedure" and that it was an error on the face of the record. He, therefore, accepted the review as provided by sec. 35(2) of the Act and directed that his order dated 25th May, 1960 be set aside and the case be put up for hearing again in accordance with law. It is against this order of the Sub -Divisional Officer that this appeal has been preferred.

(3.) The contention on behalf of the appellant is that neither "fraud" was a valid ground for review nor was it necessary that the process server who went to make service of the summons for appearance on 6th April, 1960 should have made any special diligent efforts to serve the same on the respondent and that therefore when he did not find the respondent present in his house on the day when he went to the village, the affixing of the summons on the house of the respondent was a sufficient service in law and not at all an error apparent on the face of the record. In this behalf he has relied upon 1958 R.R. D. 22 and 1958 R.R.D. 30. In the first case, Moolya Vs. Asu Singh, the grounds taken for the review of the order was that some deception had been practised by the non -petitioner therein upon the petitioner and he could not, therefore, take all the pleas that were available to him. It was in this context that it was held that "fraud" could not be a ground for reviewing any judgment and that the proper and only remedy available was a suit for setting aside the same. The case is, therefore, clearly distinguishable from the present case. In the per -sent case what the learned Sub -Divisional Officer has observed is not that a fraud had been committed by any party or the order passed by him was sought to be reviewed on the ground of any "fraud" but that a "fraud" had been committed "on the procedure" This only means that there had been a breach of the clear procedure laid down by law and that it had not been followed as it should have been done. In other words, it could said that wh|at the learned Sub -Divisional Officer meant was only that some positive provision of law had been ignored and not followed. In the second case, Ishra Vs. Okha, the learned Division Bench was interpreting the provisions of Rule 20 of the Rules framed under the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, the relevant portion whereof" If he could not be found or refused to accept the service of summons by affixing a copy of it on his usual residence"as against the provisions of Order 5, Rule 17 of the Civil Procedure Code, the relevant portion whereof is "Where the serving officer after using due and reasonable diligence cannot find the defendant". It was held on the significance of the use of the words "after using of due and Reasonable diligence" occurring in Order 5, Rule 17 of the C.P.C that the absence thereof in Rule 20 of the Rules framed under the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 saved the process server in revenue suits and proceedings from making "a real and substantial effort to find out the defendant" and that if a summon was affixed to a conspicuous place of the usual residence of the defendant it was proper. Apart from the circumstances of the case in which it was so held by the learned Division Bench it may be observed that sec. 59 of the Act which it was obligatory upon the learned Sub -Divisional Officer to follow in the present proceeding contains much more than was contained in Rule 20 referred to above. The relevant portion of sec. 59 of the Act reads as follows : "59. serving of summons. - -Every summons shall be served - -