MULA Vs. MUNSHI LAL BRAHMAN

JUDGEMENT

(1.) THIS is an appeal against an Order of the Sub-Divisional Officer, Bharatpur dated 17. 8. 62, by which he has dismissed an application for correction of entries preferred under sec. 136 of the Rajasthan Land Revenue Act (hereinafter referred to as the Act) in the circumstances given below : - The appellant preferred an application for similar correction of entries previously also, which was dismissed in default. Against it the appellant preferred an application for restoration and setting aside that Order. That was accepted subject to the payment of a cost of Rs. 30/- to the respondent. The cost was not paid and the proceeding was not get restored by the appellant. Instead thereafter he preferred the present application which has been dismissed by the learned Sub Divisional Officer with the observation that even though the Civil Procedure Code is not applicable to the proceedings under the Act, the general principles thereof are applicable; and that besides there is a provision in the Act itself, vide sec. 65, which says that if a case is dismissed, an application for restoration alone is the remedy and not the fresh application or suit.

(2.) THE learned counsel for the appellant agrees that the provisions of the Civil Procedure Code are not applicable to the proceedings under the Act but that the general principles laid down there do govern them. His only contention is that vide O. 9 R. 4 C. P. C. a fresh suit can be brought subject to limitation if a suit is dismissed under Rules 2 or 3 thereof. R. 2 lays down that a suit shall be dismissed if the summons is not served in consequence of the plaintiff's failure to pay the cost. R. 3 says, where neither party appears and the suit is called for hearing, the Court may make an Order dismissing it. THE argument is that the same principle should be applied here and the fresh application should not be held to be barred. But it is not a simple question of applying this principle to the present proceeding which is involved for the determination of the present appeal. THE appellant has not adopted this course, which might have been open to him and about which we do not want to make any pronouncement for the simple reason that whether the circumstances of the case are such has not at all been pleaded or established by the learned counsel for the appellant before us. Besides it cannot be ignored in the present case that the appellant did prefer the course of making an application for setting aside the lis dismissed in default of his appearance and did obtain an Order of the restoration thereof, of course on the condition that he paid a cost of Rs. 30/- to the respondent. THE appellant under the circumstances should have abided by that Order and proceeded accordingly. THE question in the present case thus only is whether he could have ignored that Order and adopted the course of preferring fresh application as he had done. Sec. 63 of the Act which is applicable to the present proceeding lays down that if a party does appear on the date fixed for hearing or any subsequent date or dates to which the hearing might be postponed, the proceeding might be heard and determined in his absence or might be dismissed in default. Sec. 65 thereof bars an appeal against an Order passed under sec. 63 if it has not been made on merits. In other words, where a suit is dismissed in default, no appeal can be preferred. Vide sub-sec. (2) the only remedy open to such a party is that he applies for restoration within 30 days from the date of that Order to have it set aside on the ground that he was prevented by any sufficient cause from appearing at the hearing. Chapter IV in which these secs. 63 and 65 fall lays down the Procedure of the Revenue Courts and Officers acting under that. It does not anywhere lay down that instead of paying the cost ordered, a party can bring a new suit. THEre cannot, therefore, arise any question of letting the appellant proceed with the fresh application that he has preferred to file. THE learned Sub Divisional Officer has been absolutely right in holding as he has done. It is a well established principle of law also that no party can be vexed twice for the same cause of action. Here the appellant has dragged the respondent already more than twice in the Court, and he cannot be allowed even on this basic principle of law to drag him once more in the Court of law. THEre is thus no force in this appeal which is hereby rejected. .