Dismissed

Gobind v. State of Hry. and Ors.

Punjab & Haryana HC9 Mar 2009CWP/8164/2007

Case brief

AI extract

What is this about?

The High Court unanimously dismissed the writ petition challenging exparte proceedings in a partition case under the Punjab Land Revenue Act. The court held that the petitioner failed to apply to set aside the proceedings and instead filed time-barred appeals, violating Section 20 procedural requirements, leaving no scope for writ jurisdiction.

What did the court decide?

Writ petition dismissed; no order passed.

Gobind Vs State of Hry. and Ors. — Property and Title | Punjab & Haryana HC (2009)

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CIVIL WRIT PETITION NO.8164 OF 2007 :{ 1 }:

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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DATE OF DECISION: MARCH 09, 2008

Gobind

.....Petitioner

VERSUS

State of Haryana and others

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....Respondents

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CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

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Whether Reporters of local papers may be allowed to see the judgement?

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To be referred to the Reporters or not?

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Whether the judgment should be reported in the Digest?

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PRESENT: Mr. S. R. Hooda, Advocate, for the petitioner.

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Mr. Yashwinder Singh, AAG, Haryana, for respondent Nos.1 to 4.

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Mr. Bijender Dhankar, Advocate, for respondent Nos.5 to 8.

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RANJIT SINGH, J.

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Grievance of the petitioner is that Tehsildar, Sonepat, has conducted exparte proceedings in a partition case filed by respondent Nos.5 to 8. According to the petitioner, this is in utter violation of provisions of Section 20 of the Punjab Land Revenue Act (for short, “the Act”).

¶19

In the partition proceedings filed by respondent No.5, the petitioner has been impleaded as second party No.2. Assistant

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CIVIL WRIT PETITION NO.8164 OF 2007 :{ 2 }:

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Collector IInd Grade accepted Naksha Kha on 13.6.2000 on a statement made by respondent Nos.7 and 8 and second party No.1 and 3 to the effect that they were not interested in filing any objection against Naksha Kha. Petitioner has himself disclosed that he received summons from Civil Court, Sonepat, in October 2001 for leading additional evidence in civil suit titled Teka Vs. Gobind and from this he learnt that partition proceedings have been held in a clandestine manner at the instance of respondent Nos.5 to 8. The petitioner accordingly filed an appeal against orders dated 5.3.1999 and 13.6.2000 and for setting-aside exparte order dated 12.7.1999. Collector, however, dismissed this appeal on 6.10.2004, which was impugned by filing a revision before Commissioner, Rohtak Division, Rohtak. The revision was also dismissed on 28.6.2006. The petitioner, thus, has filed the present writ petition to impugn orders Annexures P-2 to P-4 primarily on the ground that the orders are in violation of provisions of Section 20 of the Act.

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Though the petitioner is complaining of exparte proceedings without effecting proper service on him, but his appeal was rejected on the ground of appeal being not maintainable as sanad taqsim had already been prepared. The appeal was also found time barred and no reasons were disclosed to explain the delay in filing the appeal.

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The authorities have proceeded against the petitioner exparte on receipt of a report of refusal. The petitioner complains that Halqa Patwari and revenue officer being mixed up had managed this wrong report to proceed against the petitioner exparte. The petitioner claims that he was serving at Delhi and he used to leave at 6 A.M. in

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CIVIL WRIT PETITION NO.8164 OF 2007 :{ 3 }:

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the morning to return at 9 P.M. The refusal as such, was wrong. The report of the Process Server was attested by Risal Singh, Chowkidar, which is also termed as wrong. It is in this background that prayer is made for setting-aside the Sanad Taqsim.

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On the other hand, the counsel for the respondents had pleaded that Sanad Taqsim had already been issued, against which no appeal was maintainable and only civil suit was the appropriate remedy. The petitioner was also not found to have explained reasons for delay in filing this appeal. The petitioner also could not show any document from record indicating that he had moved for setting-aside of exparte proceedings. In fact, the petitioner had filed an appeal, which was time barred, without explaining the delay in making his approach. Not only that, the revision filed by the petitioner was also badly time barred. The Commissioner, as such, declined to interfere on the ground that Sanad Taqsim has already been prepared on 12.7.2001 and final instrument of partition has also been drawn between the parties. The revision was also found to be time barred for which there is no explanation offered by the petitioner. The petitioners perhaps now are left with only remedy of filing a civil suit.

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To say that while interfering with the exparte order, the court is not to adopt hyper-technical approach, the counsel has placed reliance on G.P.Srivastava Vs. R.K.Raizada & Ors., , AIR 2000 Supreme Court 1221. The Hon'ble Supreme court has observed in this case that where a party approached the Court immediately within the statutory time specified, the discretion is normally exercised in his favour, provided the absence was not malafide or intentional. Observation further is that if sufficient cause

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CIVIL WRIT PETITION NO.8164 OF 2007 :{ 4 }:

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for non appearance is shown then exparte order deserves to be setaside. It is also observed that even if the party is found to be negligent, the opposing side could be compensated by costs and exparte decree can be set-aside. As already noticed, the petitioner had not filed any application for setting-aside exparte order. In fact, the petitioner had filed an appeal, which was barred by limitation. The appeal was also found not maintainable. The revision filed by the petitioner was also found barred by limitation, for which no explanation is forthcoming. The ratio of law laid down in G.P.Srivastava's case (supra) would not be attracted to the facts of the case.

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It may also need a notice that Section 20 of the Act makes a special provision in regard to the mode of service, which are slightly different from those contained in Civil Procedure Code. Section 20 provides that summon issued by Revenue Officer shall if practicable be served (a) personally on the person to whom it is addressed or failing him (b) his recognised agent or (c) an adult member of his family usually residing with him. The cases of refusal are regulated by Section 20(2). This sub-section provides that if service can not be made or if acceptance of service so made is refused, the summons may be served by posting a copy thereof at the usual or the last known place of residence of the person to whom it is addressed or if that person does not resides in the district in which the Revenue Officer is employed and the case to which the summon relates has a reference to land in that District, then by posting a copy of the summon on some conspicuous place in or near the estate where the land is situated.

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CIVIL WRIT PETITION NO.8164 OF 2007 :{ 5 }:

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Present one is a case where the petitioner had refused the summons. The summons, as such, were required to be served by posting thereof at the usual or last place known of residence of the petitioner. It is not the case set up by the petitioner that this procedure was not followed. Thus, the basis for setting aside the exparte proceedings on the ground of service being not in accordance with Section 20 of the Act has not been properly laid in the petition. In fact, the petitioner has not filed any application for setting-aside the exparte proceedings but had only filed an appeal. Accordingly, no case for interference in exercise of writ jurisdiction is made out.

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The writ petition is, thus, dismissed.

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March 09,2009 khurmi

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( RANJIT SINGH ) JUDGE

Gobind v. State of Hry. and Ors.

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Gobind v. State of Hry. and Ors.

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