-1- S.A.W. No.448/2010 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T D.B. Civil Special Appeal (Writ) No.448 of 2010 IN S.B. Civil Writ Petition No.5928 of 2010 Ram Swaroop son of Shri Mool Chand V E R S U S Satyanarain son of Shri Badri Lal and Others Date of Judgment :::: 02/08/2010 Hon'ble Mr.Justice Dalip Singh Hon'ble Mr. Justice S.S. Kothari Shri Saransh Saini, Counsel for the Appellant Shri Hemraj Gaur, Counsel for the Respondents *** Per Court : Heard learned counsel for the appellant. Perused the judgment of the learned Single Judge dated 21.07.2010 as well as the judgments of the learned Board of Revenue for Rajasthan, Ajmer dated 03.12.2009 and 29.03.2010. The writ petition was filed by the petitioner who is the plaintiff-appellant, herein challenging the judgment of the learned Board of Revenue for Rajasthan dated 29.03.2010 by which the application submitted by the petitioner-plaintiff under Order 41 Rule 21 C.P.C. for rehearing of the appeal had been decided against the petitioner after the counsel pleaded no instructions and the second appeal came to be allowed in favour of the defendant. Before the learned Board of Revenue, the counsel for the petitioner pleaded no instructions during the course of hearing and, therefore, the -2- S.A.W. No.448/2010 appeal filed by the defendant against the judgment and decree passed by the learned R.A.A. was allowed by the learned Board of Revenue vide judgment dated 03.12.2009. The learned Single Judge after taking into consideration the entire facts and circumstances dismissed the writ petition. We find from the record that the facts which are admitted are that a suit came to be filed by the plaintiff-appellant on 28.02.2002 against one Badri. It is also admitted that on the date of filing of the suit which is 28.02.2002 Badri was already dead, having died on 26.04.2001. The service in the suit was affected upon Badri by substituted service by publication of the notice in the news- papers, which was considered sufficient even though Badri was dead. The notices had been issued in the name of the dead person. The learned trial Court dismissed the suit vide judgment dated 21.10.2003. Against the judgment of the learned trial Court the plaintiff-appellant before us filed an appeal before the learned Revenue Appellate Authority which in the absence of the defendant came to be allowed vide judgment and decree dated 02.07.2005. Thereafter, an application on behalf of the defendant- respondent came to be filed before the learned Revenue Appellate Authority in the first appeal under Order 41 -3- S.A.W. No.448/2010 Rule 21 C.P.C. for setting aside the ex-parte judgment and decree dated 07.07.2005 on the ground that the appeal had been filed against the dead person Badri, who had died much before the institution of the suit and the service had also been affected on the dead person (Badri). The learned Revenue Appellate Authority set aside the judgment and decree dated 02.07.2010 accepting the aforesaid contentions of the defendant- respondent. Thereafter, inspite of the above the learned Revenue Appellate Authority curiously enough allowed the appeal vide judgment and decree dated 25.04.2008 and decreed the suit. Being aggrieved by the judgment and decree dated 25.04.2008 the defendant-respondent, herein filed second appeal before the learned Board of Revenue. The learned Board of Revenue allowed the appeal vide judgment and decree dated 03.12.2009. During the course of hearing, the counsel for the appellant-plaintiff, who was the respondent before the learned Board of Revenue pleaded no instructions on behalf of the present appellant. The learned Board of Revenue after taking into consideration the entire facts and circumstances of the case including the fact that the suit had been instituted against the dead person allowed the appeal of the defendant on the basis of the findings given in Paras 6 and 7 of the judgment dated 03.12.2009, which -4- S.A.W. No.448/2010 is available as Annexure-2 on record. Being aggrieved by the judgment of the learned Board of Revenue dated 03.12.2009 the plaintiff filed an application under Order 41 Rule 21 C.P.C. for rehearing of the appeal on account of the fact that the counsel for the plaintiff who was respondent before the learned Board of Revenue had pleaded no instructions in the matter without any knowledge of the plaintiff and as such an opportunity should be given to the petitioner-plaintiff of being heard. The said application filed by the plaintiff before the learned Board of Revenue came up for consideration before the learned Board of Revenue and the learned Board of Revenue vide order dated 29.03.2010 dismissed the said application vide order Annexure-1, which is available on record. Being aggrieved by the fact that the appeal filed by the defendant-respondent came to be allowed by the learned Board of Revenue and the application under Order 41 Rule 21 C.P.C. came to be dismissed, the plaintiff preferred a writ petition before this Court being S.B. Civil Writ Petition No.5928/2010. The learned Single Judge taking into consideration the findings of the Board of Revenue that the service of the appeal upon the plaintiff who was the respondent before the Board had been affected validly and the respondent had also engaged a counsel -5- S.A.W. No.448/2010 to appear on his behalf to contest the appeal. The learned Single Judge also took note of the fact that several dates were given as adjournments on the request of the counsel for the plaintiff and ultimately on 24.11.2009 counsel for the plaintiff- appellant herein stated before the learned Board of Revenue that he had informed his client to appear and contact him and even gave in writing before the learned Board of Revenue that he had informed the clients about the date, but the clients did not approach him; as such he pleads no instructions. Learned Board of Revenue, therefore, taking into consideration the entire facts and circumstances which are stated in the order 29.03.2009 rejected the application filed by the plaintiff under Order 41 Rule 21 C.P.C. for setting aside the impugned judgment dated 03.12.2009. Before the learned Single Judge, the counsel for the appellant urged similar grounds which were urged before the learned Board of Revenue and the learned Single Judge taking into consideration the entire facts and circumstances of the case dismissed the writ petition. The learned Single Judge also took into account the facts which were stated by the counsel for the respondent that the learned Board of Revenue adjouned the case on four occasions to allow opportunity to the plaintiff to argue the matter and -6- S.A.W. No.448/2010 placed before the learned Single Judge the order- sheets to this effect which were taken into account by the learned Single Judge while deciding the writ petition filed by the appellant. The learned Single Judge after taking into account the fact that these four adjournments given on the request of the petitioner and the fact that on 21.11.2005 counsel for the petitioner as a result of the non-co-operation of the plaintiff-appellant pleaded no instructions by submitting in writing that he had informed the plaintiff about the previous adjournments and that he must approach him but the plaintiff has failed to appear despite notice. In the facts and circumstances, it cannot be said that the learned Board of Revenue committed any error and the learned Single Judge has rightly, therefore, refused to interfere so far as the rejection of the application filed by the appellant under Order 41 Rule 21 C.P.C. is concerned. So far as the challenge to the judgment of the learned Board of Revenue dated 03.12.2009 is concerned, we find that as per the admitted facts of the case the suit had been filed against a dead person. Even the service upon the defendant, who had already died prior to the institution to suit had been affected by publication of the notice. The learned R.A.A. accepted the plea of the defendant that the suit was filed against the dead person and even -7- S.A.W. No.448/2010 service was affected by publication of notice in the name of the dead person and had set aside the judgment and decree dated 02.07.2005 but even then allowed the appeal. In the facts and circumstances, the learned Board of Revenue has rightly set aside the judgment and decree passed by the learned Revenue Appellate Authority decreeing the suit. No exception can be taken to the judgment of the learned Board of Revenue dated 03.12.2009. In the facts and circumstances, we do not find any merit in this special appeal. Consequently, the special appeal as well as the stay application are dismissed. (S.S. Kothari) J. (Dalip Singh),J. Ashok/