Dismissed

Mohammad Shamim S/O Shri Gulab Navi v. Abdul Majid S/O Shri Bhurre Khan

Rajasthan HC8 Jul 2019CW/8935/2019

Case brief

AI extract

What is this about?

The Single Judge of the Rajasthan High Court dismissed a writ petition challenging orders where Revenue Authorities declined appeal against an ex-parte decree. The court held no material illegality existed as authorities correctly considered counsel's lapse and interest of justice.

What did the court decide?

The writ application fails and is dismissed.

Mohammad Shamim S/O Shri Gulab Navi Vs… — Civil Procedure and Limitation | Rajasthan HC (2019)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 8935/2019

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Mohammad Shamim S/o Shri Gulab Navi, Aged About 54 Years, By Caste Musalman, Resident Of Mohalla Karar Khaniya, Town Chaksu, District Jaipur (Raj.).

¶4

----Petitioner

¶5

Versus

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Abdul Majid S/o Shri Bhurre Khan, By Caste Musalman, Resident Of Mohalla Karar Khaniya, Town Chaksu, District Jaipur (Raj.).

¶7

State Of Rajasthan Through Tehsildar Chaksu, District Jaipur (Raj.)

¶8

Sub Registrar Chaksu, District Jaipur (Raj.)

¶9

----Respondents

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For Petitioner(s) : Mr. Deepak Khandelwal For Respondent(s) : Mr. Rahul Tiwari

¶11

HON'BLE MR. JUSTICE VEERENDRA SINGH SIRADHANA

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Order

¶13

08/07/2019

¶14

Petitioner has instituted the present writ application, aggrieved of the order made by Revenue Appellate Authority, dated 15^th May, 2017, confirmed by Board of Revenue for Rajasthan, Ajmer, vide order dated 9^th January, 2019.

¶15

In a nutshell, the essential skeletal material facts are: that an application under Order 9 Rule 13, was declined by the trial Court for the counsel for the respondent No. 1, pleaded ‘No Instructions’ and a decree was drawn. The Revenue Appellate Authority relying upon the opinion of the Coordinate Bench of this Court at Principal Seat, Jodhpur, in the case of Prem Singh Vs. Rama Kishan: 2010(1) DNJ (Raj.) 201 , interfered with the order

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(2 of 3)

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[CW-8935/2019]

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made by the trial Court observing that Courts are required to take a lenient view and ample opportunities are required to be ensured for the litigant should not be made to suffer for the lapse of the counsel. The Board of Revenue, Rajasthan, Ajmer, confirmed the opinion while declining the appeal instituted by petitioner for the same reason.

¶19

Learned counsel for the petitioner vehemently argued that respondent No. 1, did not approach the trial court with clean hands, and therefore, the order made on application under Order 9 Rule 13, CPC, ought not have been interfered with by the Revenue Appellate Authority and Board of Revenue for Rajasthan, Ajmer.

¶20

Per contra; counsel for the respondent while supporting the orders impugned made by the Revenue Appellate Authority so also Board of Revenue for Rajasthan, Ajmer, contended that by now it is well settled for the litigant cannot be made to suffer for the lapses on the part of the counsel and has relied upon the opinion in the Apex Court of the land in the case of Malkiat Singh & Anr. Vs. Joginder Singh & Ors.: (1998) 2 SCC 206 , wherein Apex Court of the land reiterating the settled legal position in the backdrop of opinion in the case of Tahil Ram Issardas Sadarangani & Ors. Vs. Ramchand Issardas Sadarangani & Anr. (infra) held thus:

¶21

“The appellants in their application clearly pleaded that they were neither careless nor negligent and as soon as they learnt about the ex-parte decree dated 8.2.1992 and the order dated 18.11.1991, they filed the application to set aside the order and ex-parte decree. A perusal of the record also reveals that the appellants were neither careless nor negligent in defending the suit. They had engaged a counsel and were following the proceedings. In this fact situation, the trial court, which had admittedly not issued any notice to the appellants after their counsel

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(3 of 3)

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[CW-8935/2019]

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had reported no instructions, should have, in the interest of justice, allowed that application and proceeded in the case from the stage when the counsel reported no instructions. The appellants cannot, in the facts and circumstances of the case, be said to be at fault and they should not suffer. In taking this view, we are fortified by a judgment of this Court in Tahil Ram Issardas Sadarangani and Ors. v. Ramchand Issardas Sadarangani and Anr.: AIR1993SC1182, wherein the bench opined :-

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"It is not disputed in the present case that on March 15, 1974 when Mr. Adhia, advocate withdrew from the case, the petitioners were not present in court. There is nothing on the record to show as to whether the petitioners had the notice of the hearing of the case on that day. We are of the view, when Mr. Adhia withdrew from the case, the interests of justice required, that a fresh notice for actual date hearing should have been sent to the parties. In any case in the facts and circumstances of this case we feel that the party in person was not at fault and as such should not be made to suffer."”

¶26

For the reasons aforesaid and reasonings recorded by forums below while declining the claim of the petitioner in the factual matrix in the case at hand; this Court is not inclined to entertain the instant writ application in exercise of writ jurisdiction under Article 227 of the Constitution of India for the orders impugned suffer with no illegality much-less material illegality so as to warrant any interference by this Court

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In the result, writ application fails and is hereby dismissed.

¶28

(VEERENDRA SINGH SIRADHANA),J

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Pooja /125

Mohammad Shamim S/O Shri Gulab Navi v. Abdul Majid S/O Shri Bhurre Khan

Case brief

What is this about?

What did the court decide?

Mohammad Shamim S/O Shri Gulab Navi v. Abdul Majid S/O Shri Bhurre Khan

Case brief

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What did the court decide?

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