ABHIMANYU Vs. SUKHIA

JUDGEMENT

(1.) The facts leading to this application in revision may in brief be stated as under: - - 2. The applicant made an application to,the Asstt. Collector Jaitaran with the averment that the land in dispute was in his Khatedari and the non -applicant was cultivating the same as his sub -tenant. It was urged that as the applicant himself wanted to cultivate the land, the non -applicant be ejected from the said land according to the provisions of sec. 180 of the Raj. Tenancy Act. This application was filed on 29th September, 1959. The office pointed out that the said application was not in accordance with the provisions of sec. 180 and lacked in essential details as provided in the rules under the Act. Subsequently it was reported that the formalities had been completed and accordingly it was duly registered by an order of the court on 10 -11 -56. On 12 -11 -56 the court ordered notice to be issued in the name of the non -applicant as contemplated in sec. 181 of the Act, Accordingly, a notice was issued, and from a perusal of the record of the case it appears that it was returned with the report of the process server that it was served on 13 -11 -56 on the non -applicant. On 24 -12 -56, which was the day fixed for the first hearing of the case, the applicant with his counsel was present and the non -applicant absented himself. Thereupon the trial court ordered that as the non -applicant had not put up appearance despite service of notice, ex parte proceedings may be taken against him and the applicant be directed to produce evidence on 28 -1 -57, after recording the evidence of the applicant the trial court gave an ex parte decree in his favour on 11.9.57. The applicant soon after applied for the execution of this ex parte decree and seems to have obtained possession over the land. The non -applicant then made an application on 24.5.58 wherein be stated that - -

(2.) no notice was ever served on him and that the applicant managed to forge the non -applicants thumb -impression and got an endorsement of service made by a person under his influence.

(3.) No written reply to these objections seems to have been filed by the applicant. His counsel, however, contested that the said application having not been filed within the prescribed period of limitation namely thirty days from the date of the ex parte order as contained in sec. 182(2) of the Act, it was not maintainable as being barred by limitation. The trial court examined the contentions raised by the non -applicant and on 11.6.58 it came to the conclusion that as the notice was not issued in accordance with the provisions of sec. 167 of the Act on form V. and the application itself did not contain the essential ingredients as contemplated in sec. 180 of the Act read with rules 63 to 66, the ex parte order dated 11.9.57 was not a valid order. It then in the exercise of its inherent powers under sec. 151 C.P.C. set aside the said ex parte order. The trial court in the circumstances does not appear to have gone into the question whether the application dated 24.5.58 was or was not barred by limitation. An appeal against the said decision of the Asstt. Collr. was filed by the applicant before the learned Addl. Commissioner. The main contentions of the appellant there were that, the said application dated 24.5.58 was time -barred, and that the trial court had no jurisdiction to exercise its ihher -ent powers under Sec. 151 CPC because a specific provision of law and the circumstances under which an ex parte order could be cancelled, existed in the enactment itself under sec. 182 (2) of the Rajasthan Tenancy Act. The learned Addl. Commissioner ruled out both the contentions and dismissed the appeal and confirmed the order given by the trial court. The same contentions were strenuously argued before us.