PRABHA Vs. BOARD OF REVENUE

JUDGEMENT

(1.) Challenge in the present writ petition that has been filed under Article 226 of the Constitution of India is to order Annexure-1 dated 27.2.1987 which has been passed by the Addl. Collector cum Addl. District Magistrate, Jalore as also two orders passed by the Board of Revenue dated 8.3.1990 and 24.9.1992.

(2.) The brief facts that need a necessary mention at this stage reveal that the Tehsildar made an application under Section 82 of the Rajasthan Land Revenue Act, 1955 (hereinafter referred to as "the Act of 1956") complaining about entries recorded in land entered in Khasra No. 184. It was stated that the land was entered in the name of Pujari Ganesh Puri but at the time of consolidation it was wrongly recorded in the Khatedari. It was stated that the land belonging to Devasthan Mandir should have been recorded in the name of Devasthan Mandir, Bundi and not in the name of an individual as on such land nobody can have ownership rights, the learned Addl. Collector vide order dated 27.2.1987 made a reference to the Board of Revenue at Ajmer. It appears from the reading of the order passed by the Board of Revenue Annexure-2 that the petitioner herein was proceeded ex-parte. It is conceded position that nobody had made a representation on behalf of the petitioner either. The Board of Revenue, accepted the reference vide order dated 8.3.1990 constrained thus, the petitioner moved an application for recalling the order aforesaid under the provisions of 0.41 Rule 25 Civil Procedure Code and the same has since been dismissed vide order Annexure-3 dated 24.9.1992. It is proved and so is the finding of the learned Board of Revenue that the petitioner was not served personally and a copy of the notice was affixed at his dwelling house. The Board of Revenue while making a reference under Section 59 and 60 of the Act of 1956 held that the procedure for fixing notice on the dwelling house was a sufficient compliance and thereof, no fault could be found with the Board of Revenue for proceeding ex-parte against the petitioners.

(3.) I have heard the learned counsel for the parties and with their assistance examined the records of the case. Rules of procedure are hand made of justice and therefore, even if such Rules might have been complied with, if the same result in complete injustice, the same need to be ignored. Important rights of the persons need to be decided on merits and no litigant should take advantage of obtaining an order simply on account of default and that is what precisely has happened in the present case. As mentioned above, the petitioner was not personally served. A copy of summon was however, affixed on his dwelling house. There is nothing available on record that may suggest as to when and on what date the copy of summon was affixed and whether in the facts and circumstances, there was sufficient time to the petitioners to make meaningful representation before the Board of Revenue at Ajmer. Be that as it may, even if it is found that the petitioner was technically served as per procedure, on his making an application for hearing him the matter should have been decided on merits. His application should have been allowed even though, by imposing reasonable costs upon him. Important rights of the persons must necessarily be decided on merits and not by default. It is only in case where a conduct of a particular party may be contumacious that the Court may choose to proceed against him ex-parte. If the conduct of the parties is not contumacious or reprehensible the imposition of cost can meet the ends of justice. The petitioner, in considered view of this Court at the most could have been imposed costs. The case deserved to have been decided on merits.