IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No. 465 of 2009 Date of Decision: 29th December, 2009 Smt. Amro Devi Petitioner Versus Leela Devi and another Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? No. For the petitioner: Mr. Rakesh Jaswal, Advocate. For respondent No.1: Ms. Rita Goswami, Advocate, vice counsel. For respondent No.2: Mr. J.S.Rana, Assistant Advocate General. Sanjay Karol, J. (Oral) In the present petition filed under Article 227 of the Constitution of India, petitioner Amro Devi has, inter alia, assailed the orders dated 25.11.2008 passed by Sub Divisional Officer (Civil), Hamirpur, exercising the powers of the Collector under the Land Revenue Act, whereby her applications filed under Section 12 of the H.P. Redemption of Mortgage Act, 1971 (hereinafter referred to as the Act) as also Section 5 of the Indian Limitation Act Whether the reporters of Local Papers are allowed to see the Judgment? 2 stands dismissed. The exact prayer is reproduced as under:- “It is, therefore, respectfully prayed that the present petition may kindly be allowed and the entire proceedings conducted in Case No.4/97/01/08 are declared to be null and void or in the alternative the impugned order dated 25.11.2008 passed by respondent No.2 in case No.4/97/01/08 is ordered to be quashed and the case remitted to the respondent No.2 to decide the same afresh in accordance with law.” Respondent No.1 Smt. Leela Devi filed an application dated 11.6.1996, under Section 4 of the Act against Smt. Amro Devi with a prayer that land in question be ordered to be redeemed on payment of mortgage amount. The matter was pending in the Court of Sub Divisional Officer (Civil), Hamirpur, H.P. when on 1.4.1997 Smt. Amro was proceeded ex parte but was allowed to join the proceedings on 13.9.2009. The application was hotly contested by her on various grounds. On 4.8.2003 the petition was dismissed in default. On 16.8.2003, Smt. Leela Devi filed an application for restoration of the said petition when notice was issued to Smt. Amro Devi. In terms of order dated 16.5.2005 the petition was restored after Smt. Amro Devi was 3 preceeded ex parte on 20.4.2004 and on 30.6.2006, it was finally allowed by the Collector, Sub Division, Hamirpur, on merits. In the month of February, 2008 Smt. Amro Devi moved an application for setting aside the ex parte order dated 30.3.2006 alongwith an application filed under Section 5 of the Limitation Act, seeking condonation of delay on the ground that knowledge of the ex parte order was acquired by her only when the order was produced by Smt. Leela Devi in another case pending inter se between the parties. In terms of the impugned order these applications stood dismissed on the ground that petitioner was afforded several opportunity to contest the case and that the case was restored after she was served through summons and proclamation. Heard learned counsel for the parties and also perused the record. The gravamen of the petitioner’s contention being that violation of principles of natural justice has resulted in travesty of justice. Record reveals that main petition was contested by Smt. Amro Devi on merits and she was duly represented by her Advocate. The same was being diligently pursued by her from the date of her joining the 4 proceedings upto the date prior to the dismissal of the petition. For the purposes of deciding the present petition, the relevant orders passed by the Sub Divisional Officer (Civil), Hamirpur, H.P., placed on record after translation, reads as under:- “16.8.2003 The counsel for the petitioner submitted an application. After issuing summons to the respondent, case be presented on 25.9.2003. Case called. Counsel for the petitioner present. No summons were issued to the respondent. After issuing summons today, file be presented on 20.11.2003. 20.11.2003 Case called. Counsel for the petitioner. After issuing proclamation against the respondents, the file be presented on 15.1.2004. The publication charges be deposited within two days. 6.1.2004 Case called. Counsel for the petitioner present. After issuing proclamation notice against the respondents, the file be presented on 2.3.2004. The process fee has been deposited. 2.3.2004 Case called. Kanwar Sushil, counsel for the petitioner present. After issuing proclamation notice against the respondents, the file be presented on 20.4.2004. The expenses of proclamation are enclosed with the file. 5 20.4.2004 Case called. Kanwar Sushil counsel for the petitioner is present. Despite proclamation notice, the respondent is not present. Therefore, ex parte action is taken against them. The file on application for restoration be put up on 8.6.2004 for consideration.” Record reveals that on 16.8.2003 notice was issued to Smt. Amro Devi on the restoration application filed by Smt. Leela Devi. The summons could not be issued hence on 25.9.2003 fresh summons were directed to be issued for 20.11.2003. Record reveals that at the first instance even though summons were issued but no steps for effecting service upon Smt. Amro Devi were taken and the next time summons were issued, but, however, the services could not be effected as they were returned back with the report that the addressee was not available at the given address. Consequently on 20.11.20003 the Collector, Hamirpur, instead of issuing fresh summons directly ordered for proclamation. The proclamation could not be issued for 15.1.2004, 6.1.2004 and 2.3.2004. It was finally issued for 20.4.2004, when the Collector passed an order proceeding Smt. Amro Devi ex parte in the application for restoration. Finally orders 6 dated 4.8.2003, dismissing the petition in default were set aside on 16.5.2005. Section 21 of the H.P. Land Revenue Act, 1954 (for short, the Revenue Act) provides the mode of service of the parties. For the purpose of ready reference the same are produced as under:- Section 21: Mode of service of Summons (1) A summons issued by the revenue Officer shall if practicable, be served:- (a) Personally on the person to whom it is addressed or failing him (b) His recognized agent. (2) If the service cannot be so made, or if acceptance of the service so made is refused, by summons may be served by posting a copy thereof at the usual or last known place of address of the person to whom it is addressed, or if that person does not reside in the district in which the Revenue Officer is employed and the case to which the summons relates has reference to the land in that district, then by posting a copy of summon on some conspicuous place in or near the estate wherein the land is situated. (3) If the summons relates to a case in which persons having the same interest are so numerous that personal service on all of them is not, reasonably practicable, it may, if the revenue Officer so direct be, served by delivery of a copy thereof to such of these persons as the revenue officer nominates in this behalf 7 and by proclamation of the contents thereof for information of the other persons interested. (4) A summon may, if the revenue officer so direct, be directs, to served on the persons named therein either in addition to, or in substitution for, any other mode of service, by forwarding the summons by post in a letter addressed to the person and registered, the revenue officer may presume that the summons was served at the time when the letter would be delivered in the ordinary course of posting. Provided that in addition to issuing summons, a revenue officer shall also issue proclamation calling upon the parties concerned to appear before him either in person or through as a duly authorized legal practitioner on the day fixed for the first hearing and to file objections, if any.” “Section 22: Mode of service of notice, order of proclamation or copy thereof:- A notice, order or proclamation of copy of such document, issued by the revenue officer for service on any person shall be served in the manner provided in the last forgoing section for the service of summons.” Section 23: Mode of making proclamation : When a proclamation relating to any land is issued by the Revenue Officer it shall in addition to any other mode of publication which may be prescribed in any provision of this Act, be made by beat of drum or other customary method and by post of a copy 8 thereof on a conspicuous place in or near the land to which it relates.” From the record it could not be shown that the prescribed mode of making proclamation was adhered to by the authorities. To my mind order dated 20.4.2004 thus was passed without proper application of mind. It is not the case of respondent herein that the petitioner was evading service of the notice. Record reveals that the petitioner had hotly contested the petition and was duly represented through a counsel. The service of summons was not refused by the petitioner either. Hence no order directing proclamation could have been passed at the first instance. Petitioner was the only respondent and no member of the general public was involved. Notice on the application for restoration was also not issued to the learned counsel representing her. The authority ought to have directed service by the alternate modes prescribed under Section 21 of the Revenue Act rather than straightaway issuing proclamation. The Collector has not recorded the requirement or the satisfaction necessitating the issuance of proclamation. Importantly, the order issuing the proclamation and the summons are also not of the same date. It has not been done simultaneously. The word “shall” in the proviso mandates simultaneous issue of summons and proclamation. 9 In the impugned order dated 25.11.2008 the reason for not setting aside ex parte order dated 30.3.2006 is that:- “The perusal of the record reveals that the present petitioner was afforded several reasonable opportunities to consider the case. She was allowed restoration of the case and was served through summon and proclamation. In my opinion, she has been given enough opportunities. It is revealed that the mortgaged money stands deposited in the Govt. Treasury vide challan dated 19.6.1996. The spirit of the redemption of Mortgage Act is in favour of the mortgager and in this case all formalities stand completed. Therefore, in view of above discussion, the application under section 5 of the Indian Limitation is without merit and accordingly disposed off and stay order dated 27.10.2008 is hereby vacated. Announced.” The findings that the petitioner was served through summons and proclamation being contrary to the record are thus erroneous. An ex parte order has been passed against the petitioner effecting her valuable rights, without affording due opportunity of hearing to her, which has resulted into miscarriage of justice. No reasons whatsoever have assigned for dismissing the petitioner’s application under Section 5 of the Limitation Act. It cannot be said that the petitioner has been afforded adequate 10 opportunity of representation and without hearing her the petition filed by the respondent was decided on merits. It has led into travesty of justice. Without adjudicating the merits of the matter, the petition is disposed of on the limited issue of violation of principles of natural justice. Moreover, the order dated 16.5.2005 for restoration of the petition is four lines orders and a non-speaking one. For all the aforesaid reasons the impugned order dated 25.11.2008 is set aside. Consequently, order dated 30.3.2006 having been passed in the absence of the petitioner is also set aside. The applications filed by the petitioner herein are allowed. Case No.4 of 2007 is restored to its original position and the parties through their learned counsel are directed to appear before the Authority concerned on 21.1.2010. As the matter pertains to the year 1997, hence the Collector is directed to decide the matter as expeditiously as possible and preferably within one year from the date fixed. 29th December, 2009 (Sanjay Karol) (C) Judge.