Disposed

Smt. Rammu Devi D/O Kalu W/O Shri Narayan v. Basant Kumar Arya S/O Shri Lalaram Arya

Rajasthan HC5 Jul 2024CW/2055/2024

Case brief

AI extract

What is this about?

A writ petition challenging the Board of Revenue's order setting aside an ex-parte stay in a pending partition suit was disposed of without interfering with the impugned orders; both sides agreed the petitioner could file a fresh stay application before the SDO to be decided on merits.

What the court decided

AI extract

Smt. Rammu Devi D/O Kalu W/O Shri Narayan Vs Basant Kumar Arya… — Partition | Rajasthan HC (2024)

¶1

[2024:RJ-JP:28050]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Writ Petition No.2055/2024

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Smt. Rammu Devi D/o Kalu W/o Shri Narayan, Resident Of Ward No.10, Mohalla Raigaran Chomu, Tehsil Chomu, District Jaipur (Raj.)

¶5

----Petitioner

¶6

Versus

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Basant Kumar Arya S/o Shri Lalaram Arya, Resident Of Village Sambhalpur, Tehsil Bansur, District Alwar (Raj.)

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Mewaram S/o Kalu, Resident Of Village Neendad, Tehsil Amer, District Jaipur (Raj.)

¶9

Kani W/o Kalu, Resident Of Village Neendad, Tehsil Amer, District Jaipur (Raj.)

¶10

Sharwan Devi W/o Baldev Singh, Resident Of Plot No. 39, Jai Nagar Colony, Road No.39, Jai Nagar Colony, In Front Of Road No.3, Vishwakarma Area, Jaipur.

¶11

Chittar S/o Jagannath, R/o Raghunatahpura, Tehsil Amer, District Jaipur (Raj.)

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Gopal S/o Jagannath, R/o Raghunatahpura, Tehsil Amer, District Jaipur (Raj.)

¶13

Prem Devi W/o Pappulal, R/o Hingoniya, Tehsil Phulera, District Jaipur (Raj.)

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Kaushlaya Devi W/o Leelaram, R/o Hingoniya, Tehsil Phulera, District Jaipur (Raj.)

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Babudi W/o Ramkishore, R/o Udaipuriya, Tehsil Chomu, District Jaipur (Raj.)

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Mamta W/o Ratanlal, R/o Dantaramgarh, District Sikar (Raj.)

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Lali D/o Jagannath, R/o Raghunathpura, Tehsil Amer, District Jaipur (Raj.)

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Pooran S/o Jagannath, R/o Raghunathpura, Tehsil Amer, District Jaipur (Raj.)

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

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----Respondents

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For Petitioner(s) : Mr. R.K. Daga with Mr. Rahul Singh For Respondent(s) : Mr. Vikram Singh & Mr. Aditya Sharma for Ms. Suruchi Kasliwal

(2 of 5)

[2024:RJ-JP:28050]

[CW-2055/2024]

HON'BLE MR. JUSTICE SUDESH BANSAL

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Order

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05/07/2024

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Having heard the counsel for both the parties and from perusal of the record, it has transpired that a Revenue Suit No. 157/2006 titled Smt. Ramu Devi & Others Vs. Meva Ram & Others, for declaration, partition and permanent injunction, filed on 11.05.2006 is pending before the Sub-Divisional Officer, Amer, Jaipur wherein petitioner is one of plaintiffs and contesting respondent No.1—Basant Arya is defendant No.5.

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The grievance of petitioner is that in such revenue suit, an application for temporary injunction under Section 212 of the Rajasthan Tenancy Act, 1955 was also filed on 11.05.2006, which came to be dismissed vide order dated 28.06.2016 by the Camp Court but this order was not passed on merits rather the stay application was dismissed only on technical ground of not deciding the stay application within the period of 30 days in view of Order 39(3) CPC, which is indeed not attracted in this case as counsel for petitioner admits that no ad-interim stay order was passed on the stay application.

¶30

Learned counsel for the petitioner states that, in order to revive his stay application, for deciding the same on merits, petitioner preferred an appeal against the order dated 28.06.2016 before the Revenue Appellate Authority and since the appeal was delayed by six years, a separate application under Section 5 of the Limitation Act was also filed along with appeal.

[2024:RJ-JP:28050]

[CW-2055/2024]

(3 of 5)

It appears that Revenue Appellate Authority without condoning the delay of six years in filing the appeal and keeping the application under Section 5 of the Limitation Act pending, passed an interim stay order dated 11.10.2022, in favour of appellant-plaintiff in ex-parte whereagainst the respondent No.1 filed a revision petition before the Board of Revenue.

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It appears that Board of Revenue on the revision petition preferred by the respondent No.1, against ex-parte stay order passed by Revenue Appellate Authority dated 11.10.2022, entertained the revision petition and allowed the same, without issuing notice to the petitioner, vide order dated 02.01.2024 and set aside the stay order dated 11.10.2022 and directed the Revenue Appellate Authority to consider and decide the application under Section 5 of Limitation Act first and then to consider the stay application after hearing both the parties.

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Against the order of Board of Revenue dated 02.01.2024, the instant writ petition has been filed by the petitioner. 7. During the course of arguments, learned counsel for petitioner has contended that after filing the stay application in the revenue suit on 11.05.2006, subsequent events have also come in effect as an order under Section 90-B in respect of the land in question has been passed in favour of respondent No.1, who states himself the subsequent purchaser of the land in question.

¶37

Counsel appearing on behalf of respondent No.1 does not dispute about the subsequent facts came in effect post filing of the stay application.

[2024:RJ-JP:28050]

[CW-2055/2024]

(4 of 5)

This Court finds that the Board of Revenue vide impugned order dated 02.01.2024 has directed the Revenue Appellate Authority to consider and decide the application under Section 5 of Limitation Act first on merits, before passing any order on the appeal and stay application and accordingly, the ex-parte stay order dated 11.10.2022 passed by the Revenue Authority has been set aside.

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This Court further finds that the appeal has been preferred by the petitioner before the Revenue Appellate Authority, against the order dated 28.06.2016, dismissing stay application under Section 212 Rajasthan Tenancy Act on technical ground of not deciding the stay application within 30 days. Thus it is clear that the stay application filed in the revenue suit way-back on 11.05.2006 was not decided on merits.

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Counsel for both the parties does not dispute that after filing of stay application on 11.05.2006, several subsequent events have developed which are obviously required to be considered by the Court while dealing with the stay application. In the opinion, of this Court, principle of res judicata does not apply to the stay application and a fresh stay application in the change circumstances can certainly be filed. Learned counsel for petitioner also does not dispute to this legal proposition and agreeable to file fresh stay application before the SDO Court including the subsequent events, if same is allowed to be considered and decided on merits. Counsel appearing on behalf of contesting respondent No.1, too has not opposed such contention of counsel for petitioner, allowing him to file fresh stay application.

(5 of 5)

[2024:RJ-JP:28050]

[CW-2055/2024]

Therefore, considering the totality of facts and circumstances and in view of the rival contentions made on behalf of respective counsel for petitioner and respondent No.1, referred hereinabove instead of entering into the legality and validity of the impugned order passed by the Board of Revenue, and going into the merits and demerits of the order dated 11.10.2022 passed by Revenue Appellate Authority and the order dated 28.06.2016 passed by the SDO, taking into consideration the fact that stay application filed along with the revenue suit was never decided on merits and subsequent events have also developed, the interest of justice would be served to allow the petitioner to file a fresh stay application in the pending revenue suit for which counsel for both parties do not dispute.

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Accordingly without interference with the impugned orders, the instant writ petition is hereby disposed of with liberty to the petitioner to file a fresh stay application in the pending revenue suit before the Sub-Divisional Officer, Amer, Jaipur.

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It is hereby observed that the stay application, if so filed, shall be considered on merits by the Revenue Court after hearing the opposite affected parties without being influenced by findings/ observations made by the Board of Revenue in the order impugned.

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Let a copy of this Order be sent to the Revenue Appellate Authority.

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(SUDESH BANSAL),J

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SOURAV/Karan/9

Smt. Rammu Devi D/O Kalu W/O Shri Narayan v. Basant Kumar Arya S/O Shri Lalaram Arya

Case brief

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Smt. Rammu Devi D/O Kalu W/O Shri Narayan v. Basant Kumar Arya S/O Shri Lalaram Arya

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