Petitioner Counsel :- Sudhanshu Srivastava Respondent Counsel :- C.S.C.,Mahesh Narain Singh,Ram Milan Mishra Hon'ble Pankaj Mithal, J Petitioner has filed the present writ petition for issuance of a writ of certiorari quashing the judgment and order dated 23.8.2011 passed by the Board of Revenue and that by the Sub-Divisional Officer (in short SDO) dated 26.4.2010.
The SDO by the aforesaid order has allowed the applications dated 5.9.2007 and dated 7.8.2009 filed by respondent no. 5 Satya Narain and has recalled the order dated 28.4.2000 rejecting the application dated 26.7.1996 and has set aside the judgment and order dated 11.7.1996 decreeing the petitioner's suit No. 380 of 1996 under Section 229-B of the U.P. Z.A., and LR Act (hereinafter referred to as 'Act').
Petitioner had instituted suit no. 380 of 1995 arraying respondent no. 5 as one of the respondents under Section 229-B of the Act for declaration of his rights over agricultural plots no. 376 area 2.837 hectare and 384/1848 area 0.016 hectare, total area 2.853 situate in village Taraon, Paragana and Tehsil-Kerakat, District Jaunpur. The said suit was decreed ex-parte by the SDO vide judgment and order dated 11.7.1996.
On 5.9.2007 respondent no. 5 filed application for recall/setting aside the ex-parte judgment and order dated 11.7.1996. An objection to this application was raised by the petitioner that a restoration application dated 26.7.1996 of respondent no. 5 in this regard has already been rejected on 28.4.2000 and therefore second application is not maintainable. In the light of the above objection, respondent no. 5 on 7.8.2009 filed another application stating that he had never filed any application earlier for recall or setting aside the ex-parte judgment and order dated 11.7.1996 and prayed for recall of the order dated 28.4.2000, if any.
The SDO by the impugned order dated 26.4.2010 accorded the benefit of Section 5 of the Limitation Act and ordered for setting aside the ex-parte decree dated 11.7.1996. The order dated 28.4.2000 rejecting the earlier application dated 26.7.1996 was also recalled. This order has been affirmed by the Commissioner vide order dated 23.8.2011 on challenge on being made to it by the petitioner.
At the initial stage when the writ petition was filed, as Ram Milan Misra has entered into caveat on behalf of respondent no. 5, the matter was adjourned. It was further adjourned first on the joint request of the parties and thereafter on the request of the counsel for the petitioner. In the meantime parties exchanged necessary affidavits. As the pleadings were complete, with the consent of the parties, I heard the matter finally.
Sri Ram Niwas Singh assisted by Sri Sudhansu Srivastava, learned counsel for the petitioner has advanced the following arguments assailing the impugned orders:-
1.Respondent no. 5 was duly served with the summons/notice in suit no. 380 of 1995 by refusal whereupon the ex-parte decree came to be passed which is not liable to be recalled/ set aside;
2.Respondent no. 5 had acquired knowledge of the ex-parte decree on 26.7.1996 when he had filed the first application for recalling the same therefore the second application filed on his behalf on 5.9.2007 was beyond time by more than 7 years and the said delay could not have been condoned;
3.There was no application by the respondent no. 5 supported by any affidavit under Section 5 of the Limitation Act seeking condonation of delay. Therefore, the courts below could not have extended the benefit of Section 5 of the Limitation Act in allowing the recall application of respondent no. 5;
4.The conduct of respondent no. 5 in filing the second application for recall/setting aside the decree by concealing fact of filing the first application and its rejection, itself dis-entitle him for grant of any relief.
In response to the above arguments advanced on behalf of the petitioner Sri M.A. Qadeer, Senior Advocate assisted by Sri Ram Milan Misra highlighted that respondent no. 5 had purchased the land in dispute by means of registered sale deed dated 16.8.1960 from the previous recorded tenure holder Ram Sewak. During the consolidation proceedings in respect of the above land two sets of objections under Section 9-A (2) of the U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as 'Consolidation Act') came to be filed one by Sita Ram, father of the petitioner, and the other by the respondent no. 5. The objection of the respondent no. 5 was allowed and and that of Sita Ram was dismissed by the Consolidation Officer. In place of Ram Sewak the name of respondent no. 5 was directed to be entered in the revenue records. Accordingly, name of respondent no. 5 was entered in the revenue records as well as in CH Forms 41 and 45. Sita Ram, the father of the petitioner thereafter instituted Original Suit No. 395 of 1968 for permanent injunction which was dismissed on 5.12.1975. The appeal of Sita Ram against it was allowed and the suit was decreed by the appellate court on 16.7.1980 but in Second Appeal No. 2478 of 1980 the judgment and order of the appellate court was set aside by the High Court on 7.8.2007 and that of the trial court was affirmed. The SLP of the petitioner against the same has also been dismissed on 27.7.2009. During the pendency of the Second Appeal in the High Court, petitioner had filed the present suit no. 380 of 1995 under Section 229-B of the Act on the basis of the judgment and order dated 16.7.1980 of the appellate court passed in the suit no. 395 of 1968 for permanent injunction concealing the fact that the matter was sub-judice in Second Appeal before the High Court. The ex-parte decree dated 11.7.1996 passed in suit no. 380 of 1995 is primarily based upon the judgment and order of the appellate court dated 16.7.1980 passed in Civil Appeal No. 48 of 1976 and the said judgment having been set aside, the very foundation of the ex-parte decree has vanished and as such it can not be sustained. The ex-parte judgment and order is no judgment in the eyes of law, as it records no reason for dismissing the suit. Respondent no. 5 had never filed any application on 26.7.1996 for recall of the ex-parte decree dated 11.7.1996. He had no knowledge even of dismissal of the alleged application. He had only filed application for recall/setting aside the ex-parte order on 5.9.2007 which was duly supported by an affidavit. The SDO in view of entirety of the fact rightly condoned delay in filing the above restoration application and set aside the ex-parte decree. He has further submitted that the suit filed by the petitioner under Section 229-B of the Act was itself an abuse of the process of law after the petitioner's predecessor in interest had lost the battle before the Consolidation courts and in the suit for permanent injunction. It was barred by Section 49 of the Consolidation Act. In view of the above, the ex-parte decree has rightly been set aside. The suit under Section 229-B of the Act do requires re-consideration on merits so as to avoid conflict of decisions, as the said decree if allowed to stand would be contrary to the rights adjudicated by the Consolidation Authorities as well as the civil court. Thus, the court in exercise of its extra-ordinary writ jurisdiction need not interfere with the impugned orders, as quashing of the same would revive an illegal judgment and order.
In view of the above submissions so advanced on behalf of the parties, two basic questions surfaces for consideration:-
The suit no. 380 of 2005 under Section 229-B of the Act instituted by the petitioner was decreed on 11.7.1996. The notice of the said suit was served upon respondent no. 5 by refusal which is evident from the endorsement available on the original of the notice on record. Apart from the above service by refusal, the notice of the suit was not served upon respondent no 5 in any other manner. The Court on the basis of the above service by refusal vide order dated 6.6.1996 directed to proceed with the suit ex-parte and thereafter it was decreed on 11.7.1996. The Courts below have recorded a finding that the order dated 6.6.1996 which directs for proceeding ex-parte is unsigned. It bears no signatures of the Presiding Officer. Moreover, service through process server by refusal can not be held to be sufficient as notice was not sent by registered post nor there was any substituted service. Service of notice by refusal was denied. The endorsement of refusal was not proved by producing any of the witnesses in whose presence respondent no. 5 refused to receive the summons. Thus in the absence of due service of notice upon respondent no. 5, the judgment and order dated 11.7.1996 is certainly an ex-parte order.
The aforesaid ex-parte decree has been set aside by condoning the delay in filing the application dated 5.9.2007. The decree was passed on 11.7.1996 whereas the application for setting it aside was filed by respondent no. 5 on 5.9.2007 ie., after a long gap of time. The application was not accompanied by any application under Section 5 of the Limitation Act. It is settled law that the delay in filing any application much less an application for setting aside the ex-parte decree can not be condoned unless there is specific application to this effect and the delay has been adequately explained. The courts below in allowing the application for setting aside the ex-parte decree have extended the benefit of Section 5 of the Limitation Act but without assigning any reason for condoning the delay in filing the application for setting aside the ex-parte decree. The delay could not have been condoned when there was no application to such an effect and without recording any finding with regard to sufficiency of explanation.
It has been submitted that respondent no. 5 had previously filed restoration application dated 26.7.1996 which was rejected on 8.4.2000. Therefore, the application dated 5.9.2007 was the second application and not maintainable and that he had knowledge of the ex-parte decree at least from 26.7.1996 and thus the filing the of the application on 5.9.2007 was highly belated. Respondent no. 5 has denied filing of the application dated 26.7.1996 and the knowledge of the ex-parte decree on the said date.
In this connection, the crucial point is as to whether respondent no. 5 had actually filed application dated 26.7.1996 and that he had the knowledge of the ex-parte decree on the said date. The courts below in this regard have not recorded any finding. There is no finding that the respondent no. 5 had not filed restoration application dated 26.7.1996 on the said date.
The photocopy of the application dated 26.7.1996 has been enclosed as annexure 3 to the writ petition. It states that the applicant came to know of the ex-parte decree on the date of filing of the application ie. 26.7.1996. On the right hand side of the application where the name of the applicant is typed there are no signatures. The application is therefore unsigned. There appears to be no affidavit in support of the said application. On the other hand, respondent no. 5 in support of his application dated 5.9.2007 had filed his personal affidavit of the same date stating that he had no previous knowledge of the ex-parte order dated 11.7.1996 and it was only on the said date he came to know that respondents have got their names mutated in revenue records whereupon he made enquires and immediately filed the application. He was not served with any notice of the suit and no notice was published in the village. The service of notice is fictitious. In support of application filed by him on 25.9.2007 another affidavit was filed by respondent no. 5 stating that after filing the application dated 5.9.2007 and on receiving the objections of the petitioner, on inspection of the record, it has transpired that some fake application in his name for getting the aforesaid decree set aside was got filed which was dismissed for want of prosecution on 28.4.2000. Respondent no. 5 had never filed any such application. He had not engaged any counsel for the purpose. He had not signed any such application. The aforesaid averments made on affidavit by respondent no. 5 were not denied from the side of the petitioner. It means that the application alleged to have been filed by respondent no. 5 was a fictitious one. Thus, the application of the respondent no. 5 dated 5.9.2007 can not be treated to be the second application. At the same time since the earlier application dated 26.7.1996 was fake, the petitioner can not be attributed knowledge of the ex-parte order w.e.f., the said date. Accordingly, respondent no. 5 seems to have acquired knowledge of the ex-parte decree on 5.9.2007 only. There is no other material on record to establish that respondent no. 5 had knowledge of the ex-parte decree earlier to 5.9.2007.
Article 123 to the Schedule to the Limitation Act 1963 provides for a period of 30 days for filing an application for setting aside an ex-parte decree from the date of decree or its knowledge where the summons or notice was not duly served. In view of the above provision, the application was within time from the date of knowledge of the ex-parte decree for which no explanation for the delay was necessary. In Bhagmal and Others Vs. Kunwar Lal and Others AIR 2010 SC 2991 it has been held that an application for setting aside ex-parte decree moved within 30 days of the knowledge can not be dismissed on a technical ground that on separate application under Section 5 of the Limitation Act was filed.
The ex-parte decree dated 11.l7.1996 is in favour of the petitioner. It declares the rights of the petitioner over the land in question. It is admitted position that in respect of the above land objections of the father of the petitioner Sita Ram under Section 9-A (2) of the U.P. Consolidation of Holdings Act had been dismissed by the Consolidation Officer and the land was directed to be recorded in the name of respondent no. 5 which means that the dispute regarding the said land between the parties was settled by the consolidation court. Once the order of the consolidation court has become final, any further proceeding or suit in respect of the same cause of action between the same parties or persons claiming rights through them was barred by Section 49 of the Consolidation Act. Therefore, the present suit for declaration instituted by the petitioner prima-facie appears to be not maintainable and barred by Section 49 of the Act.
Besides the above, the father of the petitioner lost up to the Supreme Court in a suit for permanent injunction. The present suit was filed by the petitioner for declaration of his rights on the basis of the judgment and order of the first appellate court arising from suit no. 395 of 1968 for permanent injunction. A bare reading of the plaint of the present suit shows that it was based upon the judgment and order dated 16.7.1980 passed by the first appellate court. Petitioner in filing the present suit appears to have concealed the fact that the aforesaid judgment, order and decree was under challenge in Second Appeal before the High Court. The Second Appeal having been allowed by the High Court on 7.8.2007 which judgment has been affirmed by the Supreme Court on 27.7.2009 leaving no scope for the decree of the above suits, as the very basis on which the plaint of the petitioner in the present case rests ceased to exist and stood vanished.
In addition to the above, the ex-parte order dated 11.7.1996 is no decree in the eyes of law. The judgment and order decreeing the suit records no reasons on any aspect of the matters and the claim by the petitioner. The judgment and order dated 11.2.1996 does not even consider the facts of the case in decreeing the suit. It has been decreed as there was no contest. In the case of Balraj Taneja and Others Vs. Sunil Madan and Others AIR 1999 SC 3381 their Lordships of the Supreme Court observed as under:-
"Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement given by the Judge of the grounds for a decree or order. What a judgment should contain is indicated in Order 20 Rule 4 (2) which says that a judgment shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision. It should be a self-contained document from which it should appear as to what were the facts of the case and what was the controversy which was tried to be settled by the court and in what manner. The process of reasoning by which the court came to the ultimate conclusion and decreed the suit should be reflected clearly in the judgment."
The Supreme Court therein further went on to add:-
"Even if the definition were not contained in Section 2 (9) or the contents thereof were not indicated in Order 20 Rule 4(2) CPC, the judgment would still mean the process of reasoning by which a Judge decides a case in favour of one party and against the other. In judicial proceedings, there can not be arbitrary orders. A Judge can not merely say "suit decreed' or "suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the other. This infirmity in the present judgment is glaring and for that reason also the judgment can not be sustained."
To the same effect is decision of the Supreme Court in Rameshwar Dayal Vs. Banda (dead) through his legal representatives and Others 1993 All. C.J. 597 which says that a judgment not determining the issues involved is no judgment in the eyes of law giving rise a valid consequential decree.
His Lordship of this Court in Commissioner of Income Tax Vs. Surendra Singh Pawha AIR 1995 Alld. 289 held that even an ex-parte decree must satisfy the description of a judgment and therefore a judgment not supported by reasons is no judgment in law.
Thus for the above two reasons also, the decree dated 11.7.1996 is unsustainable and if it has been set aside and the parties have been relegated to a fresh trial on merits, no illegality has been committed causing prejudice to them.
Any interference with the impugned orders in exercise of extraordinary discretionary jurisdiction would be patently illegal as the Court exercises its discription for advancement of justice and not for restoring an illegal order. It has time and again been remained by the highest Court that in exercise of discretionary jurisdiction the should not set aside/quash an order which revives an illegal or a bad order resulting in miscarriage of justice vide AIR 1966 SC 828 G.V. Rao Vs. State of Andhra Pradesh and Others and AIR 2003 SC 2899 Chandra Singh Vs. State of Rajasthan. Therefore, also I am not inclined to intervene in the matter in the facts and circumstances of the case.
Accordingly, I am of the opinion that the Courts below are justified in setting aside the ex-parte decree dated 11.7.1996 and the said orders require no interference by this Court in exercise of writ jurisdiction for the reasons indicated above. The writ petition is devoid of merit and is dismissed with cost upon the parties.
Dated 3.7.2012 SKS