''>•: felEBEWCW ^\ IN THE HX6H COURT W CHHATTtSSAW AT BXLASPyR W.P. (227> N0.^5^/2008 IN THE HATrER OFs "fe PETITtONERNo.l/ NON- APrUGANT NOS. 2 ",^^t^ ^::i^^" / PETmONERNo.a';/ NON- APPUCANT NOS. 3 Om Prak^sh, S/o Shri Rammilan, Aged about 19 years K/o Btock No. 39, New Raj Nagar, Post- Banganwa, Tehsll- Kotma, District- Anuppur, Madhya Pradesh ^ Satyendra KumarYadav S/o Shri Trtbhuvan Yadav, Aged about 24years R/QBtockNo. 39, NewRajNagar, Post- Banganwa, TehsH- Kotma, Distrlct- Anuppur, Madhya Pradesh VERSUS RESPONDENTS N0.1/ APPUCANT ^^f^9'^^ iSy' .^isf' §?-"?•; 1. Amjad Khan, S/o Shri Waslm Khan, Aged atiout 50 yeare, R/QViliageMarwahi, TehsK- Marwahi, District- Bdaspur, Chhattisgarh, Ajlm Momin, S/o Shri Asir Momin, R/o Vittage Marwahi, Tehsif- Marwahi, District-Bilaspur, Chhattiisgarh, wnrr i»enTKM*UNDUtARTici^s az? QFTHR """" "^ cu^nn'»tt€wijQSjBMQA RESPONDENT N0.2/ NON-APPUCANT N0.1 5' 2, ^. "\. .':». -t w&iSc—n \e) \& - S'R^I^iI Is-ti* W*idl <t»HI<h ~S^ -^WWi, •SI-^V'KC, fsfdl'Hy R--^4:>^...-.^^200<g 3II^I'<raSF ('yi^'^') ¥WTW^ifet siit^r l:t>1!4^4t^ "HTH^ ^f 'fe^t ^^( ^ siRlH 3)1^71 S.B. Hon'Ue ShriJusticeN.S.A^rwaI </ 18.08.2009 Shri Ankit Siaghal, Adv^cate for petiti Shri Kamal Pandey, Advt?eate for None appears for respon^ent No. Leamed counsel appearjng matter can be heard finally eve4 Heard finally. The instant petition is| 10.11.2008 (Annexure P/l), revision case No. R/14/A-6/2005- Distt. BUaspur (CG), betweei} Momin & Others, whereby andj the applicant was allowed, afl^ by the Tehsildar, Marwahi, Additional Collector, were set The brieffactsofthe cas{ an application for mutation of Tehsildar, Marwahi. Inthatm^tter, herein. The notices v/ere serveld publication and pursuant to ncj; Tehsildar, Marwahi, proceed^d loners. respondentNo. 1. entNo.2. ig for the parties submits Aat tiie in absence ofrespondentNo. 2. directed against the order dated f|assed by Ifae Board of Revenue ia >-06, Vai. Ganya, Tah. Marwahi. the parties Amjad Khan v. Ajim |whereunderthe revision preferred by the ordeKs dated 26.05.2004 passed a+d dated 29.08.2005, passed by tfae afside. i^ arethal, the respondent herein filed ^ubject land in his favour before the n^tter, notice was sent to the petitioner upon tiie petitioners through papei ^n appearance of the petitioners, tfae expsrte and thereafler e^psste B'- .'.1-' ' * XI-Iffi;—78 sreTw lt;-ii+ ^2?T 3ff^T ffii^iiqi 7^ T<ii<ii<n<i, yflly'is, fqcniyy *n*iwi tt»*ii<*» "^.200 3n^Sixra^ (1pf3^tT) ?^<iiw ^ter sii^r -1 condonation ofdelay for settin; <*iA(t<¥i'4i'i Hwcif Tf f%(^ <rai-^.i< ^ affilT aii^i mutation order was passed o|n 14.08.2003 (Annexure P/4). On 30.01.2004, the said exparte oijder was assailed by the petitioners by filing an application under s^ction 35 (3) of CG Land Revenue Code, 1959 (for short 'Cojle') alongwith aa application for aside ofexparte order. On that application, nofices were issued to the respondents who appearedand filedan aitplication under Order 7 Rule 11 of CPC to reject the application fi|led by the petitioner under section 35 (3) ofthe Code, being not maui|tamable. The TehsUdar, after he^ring botih the parties on appBcation under Chder 7 Rule 11 ofCPCj 26.05-2004. Thereagains^ a revisioi^ was preferred by the respondent before the Additional Colleclor, Pendra Road. The Additional Collector, affinning the order {jassed by fte Tehsildar, dlsinissed the revision. Thereagainst, the respon Revenue Board under section The Board of Revenue, (Annexure P/l), allowed the passed by the Tehsildar, Marw|ahi and Additional Collector, Pendra dismissed the same vide order dated ient moved an application before fhe ofthe Code. [>y ifflpugned orderdated 10.11.2008 revision by dismissiag the orders / XI-HC—78 /••••' •^"- ^SET "41'41d'll, yal'M'ic, f°«ii'M>i,< tirq^l (h*1ieh ••^200 sn^r -q^qr c^fg^q) sn^i vs K-fi<* ^T 3?T^?T ^SJT^> li' ^gniT flftCT 311^1 te mutetion order has became final under section 35 (3) ofthe Code icdy available to the petitioner is to Road, holding that as Ifae expa^ and therefore, the application f4ed is not mauitainable and only re^i file an appeal. I have heard tiie counsel 4ppearing for the parties and perosed the record. Before consjdering the rii it would be appropriate to adyerj the relevant provisions section 35 (3) and 44 (I )(a) of^' ;ain|st "35 (3). The party again) under sub section (1) or] days from the date of su^ order in case the notieel served to have it set prevented by aiiy suflBcj requisite process fees f(^ notice on the opposite hearing and the Revenuei the opposite party whicb which such oider was pi inquiry as he considers passed." "44 (l)(a). If such order OfGcer subordinate to whether or not tfae officer with the powers ofthe C( OfiBcer." *l<<i<-t<il-l 'Wwff ^l' feA t^t$]< ^li'sffin •3ii^?i al subnussions madp by die parties, the relevant provisions contaiired in Code which reads as under : P^rty whom aay order is passed |(2) may apply within thirty |h order or kaowledge of the or summons was not duly |e on the ground Aat he was |ent cause fix>m paying tiie t- service of a summons or or &om aiyearing at Ifae lOflficer may, after notice to 1 was preseat on the date on |ssed and after making such jecessary, set aside the order is passed by any Revenue (ie Sub Divisional Officer, Ipassing fhe order is iavested jUector-to the Sub Divisional a '^ XI-HC—78 ^ sf^y w ft-ii+ wsn^ww SaUu *11*1CTI Sl>*ne|i 'S^ '<<l<lld<1, W-^WW, [sidiyy to,ip, (2^-f-')Kio 70^3?^ Tra?---"lt"-":------"7:-"--Wi,.200 3iI^F •q^T (1plf3^«T) ireiiw^fersiitw ^ - '+Mly41-1 f^^ ^^^ ^f^^R ^STRtHSn^T A bare perusal of bot^ Ifae provisiofls would reveal that against an exparte order, the a^grieved party have both the remedtes either to file application to s^t aside the order which is passed e3q>arte, or to iBle an appeal und|er section 44 (l)(a) Ofthe Code. It canaot be said tfaat if a mutation order has been passed exparte, tiie remedy under sect(on 35 (3) ofthe Code is barred and only remedy is to file an appe^il, therefore, the order passed by the Board ofRevenue is patentiy U^egal and deserves to be setaside. Therefore, the order p^ssed by the Board of Revenue is hereby set aside and the matt^r is remittel back to Ifae Tehsildar, Marwahi, to decide the applicjation ffled by the petitioners nnder section 35 (3) ofthe Code, ot| its own merits, in accordance wift law, after affording due opport|unities to both tfae (arties. No order asto costs. Sd/- N.K.Agarwal Judge ^:.- -.._- &ila)o9 'eo.^, or^ .itl^^^ UOD" ^ is cBn'Biuxic^edta^BeT^^" O!-|{O?!''>^SR a!B'»''1 '05u'£s®e>^/-'-i-~sR. ^< ^^-^ '1:1 ^l^, )A^" ) (/ ^ ^^ >f/0c •s.y—--^.