CHAMPALAL Vs. ILLAHI BUX

JUDGEMENT

(1.) THE circumstances that give rise to this second appeal may briefly be stated thus : - Champalal brought a suit under sec. 9 of the Specific Relief Act against Illahi Bux in the court of the Munsiff, Nawa. THE suit was decreed ex parte as Illahi bux did not appear to contest. THEreafter Illahi Bux took the matter in appeal. His appeal was however, dismissed as no appeal is provided from a decree in a suit under sec 9. Illahi Bux then went up in revision before the Hon'ble Chief Justice for Rajasthan. THE Hon'ble Chief Justice was pleased to observe that as the: suit lay within the exclusive jurisdiction of a revenue court after the enforcement of the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951, the Munsiff should have tran ferred the same under sec. 6 (3) of the Act to the revenue court having jurisdiction over it. THE revision was, therefore, allowed, the ex parte decree of the Munsiff, dated 30. 3. 51 was set aside and the ease was transferred for disposal to the revenue court having jurisdiction over the matter. In compliance with this order the case went to the Assistant Collector, Nawa. It was argued before him by the appellant that the ex parte decree alone was set aside and that the ex parte order remained in tact and hence Illahi Bux was not entitled to get a hearing On behalf of Illahi Bux it was stated that the setting aside of the ex parte decree ipso facto means the termination of the ex parte order and hence the trial should commence de novo. THE learned Assistant Collector, agreed with the objection raised by the plaintiff and held that Illahi Bux could not be allowed to put in his written statement or to lead any evidence. Illahi Bux went up in appeal against this order before the learned Additional Commissioner who allowed the same held that the ex parte order itself stood set aside by the decision of the Hon'ble High Court and hence Illahi Bux was entitled to put in a written statement and to lead his evidence. Champalal has come up in appeal against this order.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The main contention raised by Shri Madan Mohan Tiwari appearing for the appellant before us is that as the ex parte order was passed by the trial court on 8. 1. 51 and as the Rajasthan Revenue Courts (Procedure & Jurisdiction) Act, 1951 came into force on 31st January, 1951, the proceedings carried out by the trial court subsequent to the enforcement of the Act have been held as without jurisdiction by the Hon'ble High Court. All the proceedings prior to it should be deemed to be valid and binding on the revenue court and as such the ex parte order, dated 8. 1. 51 should be allowed to stand in tact Reliance has also been placed in this connection upon a decision of the High Court reported in 1954 RLW 727 (Deva vs. Navla ). On behalf of the respondent it has been replied that the Hon'ble High Court having set aside the ex parte decree and having directed a further trial of the suit, it should ipso facto follow that the ex parte order, dated 8. 1. 51, stands reversed and that the suit should have a fresh trial. AIR 1951 Ajmer 78, has been cited in this connection. Order 9, Rule XIII, Note 25 of Chitley & Rao's commentary on C. P. C. at page 1934, 1950 Edition, has also been referred to before us.