Wnw / / V/ W \ $9i c9? may: wmT coURT PETITION OF cggATTISGARH, 227 No. 2193 op BILASPUR 2009 W PETITIONERS ambilas Agrawal and am: g9* Versus RESPONDENTS Bihari Lal Agrawal alld others ORDER Post for l§-7—2009 ‘._‘._,l dl— N.K. Agrawal Judge R S HIGH COURT 9F CHHATTISGARH, 3ILASPUR WRIT PETITIGN (227} No. 2193 QF 2GO9 PETITIONERS 1. Rambilas Agrawai, S/o late Smi NON-APPLICANTS Maniram Agrawal, aged about 50 years, r€sident of village Sargaon, Tahsil Mungeii, District Bilaspur (CG) ‘ . 2. PumShoftam Agrawal, son of Late Shn‘ Ramratan Agrawal, agcd about 47 years, rssident of VillagE Hini, ‘(Biiha Mod): Tahsil Bilha, District Bilaspur {CG} Vei'sus V5) 1. Bihan' L21 Agrawal, aged about 62 years 2. Mahavem‘ Prasad AgraWaA, agad abaut 55 yaars ‘ Both Sons of late Shri Maniram Agrawal, resident of vjjlage Bilha, Tahsil Biiha, Distt. Bilaspur {CG 3. State cf Chhattisgarh actiag through Collector, Bilaspur (CG) RESPGKDENTS APPLICANT Shri Malloj Paranjpe, Advocate for the petitioners. Shri Prateek Shanna, Adv. for the respondents No. 1 and 2. Shri Satish Gupta, Govt. Adv. for State. SB: Harrow Sim: worms 3m. AGARWAL - ORDER “57—20093 ’E‘he instant petition is directed against the order dated 6-4- 2009 passed by the Board of Revenue, Chliattisgarh, Bilaspur in _/ . ' Revision Case No/RNJOQ/R/A-27/ 199/2008 village Mohbhattha, Talisi}. Mungeii, Distt. Bilaspur whereby and where-under, learned Board of Revenue quashed the order passed by the Additiona’t Tehsiidai‘, Sargaon dated 28—9—2004 and the order dated 5—5—2007 passed in Sub Divisional Oiiicer, Mungeli in first appeal and the order dated 27-2—2008 in second appeal. 2. Brief facts of the case are as under:— z (i) That, an application under Section 178 of CG. Land Revenue Code {briefiy, the Code) was preferred by the petitioner Rambilas Agrawal for rtecording his nama on the land baarm'g Khasra No. 420/2, 450] 1 ajld 452 1'11 place. of mspomknts in pursuancs 0f 0116 partition d€sci slaved 21—3—2001. On 28-9—2004, the Additional Tehsildar undér Sectioxt 35(2) of the Code passsd an ax part6 partitisn ordar dir€cting mutation of aforeSaid larld in aam€ of applicam in pursuance of partition dsed dated 21—3-2091. The Iaspoxldonts did not avail tho remedy as provided under Sectiou 35(3) of the Code. (ii) That, the respondents pleading their date of knowledge of the said partition order on 7~9~2006 preferred &st appeal under Section 44(1) of the Code befom the Sub Divisional O§1cer, Mungeh' aloeg with a1; application under Section 5 of Limitation Ace. Vide order dated 5—5—2007; the Sub Divisional O$cer dismissed the appiication for condonation of deiay in preferring appeai and conseqtieriiiy the appeal was also dismissed. The respondeats preferred secozid appeal before the Additional £3011ector, Bilaspur, which was also ciismissed by the Additional Collector ori 27—2-2008 afiirmirig the order passed by the Sub Divisional Odicer. {iii} Thereafter, the respondents hereiii filed revision under Section 5O of the Code before the Board of Revenue in which the order impugaed has been passed whereby the original order passed by the Additional Tehsildar direcijng partition of the property and directing mutation of the said land in favour of the petitioner has been set aside. / 3. Learned counsel for the petitioners submits that the order passed by the Board of Revenue is illegal, perverse and deserves to be quashed and for which, he made the following submissions:- (i) The Board of Revenue has no power to quash the order of Additional Tehsildar in a revision preferred by the respondents against the order passed in second appeal whereby the appellate Court has dismissed the respondents’ appeal on the ground of limitation and, therefore, the Board of Revenue committed gross / megah’ty in sineriug' into the men‘ts of the case and in quashjng thc ordm" passed by the Tehsildar. (ii) The Board of Revenue exercising the revisioual jurisdiction exceeded its jurisdiction whiie coedom‘ng the delay i3: preferring first appeal emd second appeal by entering into the men‘ts of The matter. By placing reiiance upon two decisions of Supreme Court in the cases of Commissioner, Ngg $arishad, Bhilwara —v- Labour Com-i, Bhilwaxa and another reported in 2009 AIR SCW 1456 and m state of Jharkhami ami others —v- Ashok Kumat Chokhaai and othexs reported in 2009 AIR SCW 1537, he submitted that the Court while deciding application for condonation of delay, caanot go into the merits of the case. (iii) The respondents did not avail the remedy as provided under Section 85 (3) of the Code for settirxg aside the ex part6 order upon showing sufficient cause of non~appearance on the date of hearing and in its place, they in their own Wisdom chosen to file appeal In appeal, they can only challenge the merits of the matter but they cannot challenge that the ex parte order has been passed without due service of notice on them and without their knowledge in support, Shri Paranjpe places reliance upon the decision in the case of 33mm; Kumar Jain —v- Archana Kama: and another reported in 2005 AIR SCW 270. (iv) The allegation of fraud has to he pleaded and proved as in the criminal case and Without there being any such specific allegations, evidence/and opportunity of rebuttal, iinding regarding hand is perverse 4. Per contra, Shri Prateek Shanna, learned counsel appearing for the respondents No. 1 and 2, supported the order impugned and submitted that the nrst and the second appellate Court dismissed the application ,for condonation of delay filed by the respondents by a cryptic order without entering into the real state of affairs of the case. He submitted that in fact, the case was fixed for order on 28-9—2004 whereas service through affnrture has been said to ba afihcted 1133011 the respondents on 29—9-2004, which is char fxom The C€rtiii6d copy of the service report Ex. P-6, P~7 and 19—8 iiied by the respondents; and therefors, there was no due service of notice upon the respondents; in fact, by tempering with the record of the Addin'onal Tehsildar, The said order has been obtained by fraud. Fraud Vih‘ates everything. The petitioners have not come with clean hands. They have suppressed the fact that in fact, notices were not served upon the respondents. Therefore, ignoring all these facts, the dismissal of condonation of delay application by both fhe appellate Couxts was totally incorrect, so also the order passed by Tehsildar without service of notice upon the respondents was contrary to law. And therefore, the order passed by the Board of Revenue which is well reasoned, deserves to be upheld. In support of his submission, he placed reliance upon decisions of Supreme Court in the case of Ganpatbhai Mahiiibhai Solanki —v— State of Gujarat and others reported in {2008) 12 SCC 353 and in KD. Sharma —v~ {steel Authoritv of lndia Limited and others reported in (2008) 12 SCC 481. Shri Prateek Shanna further submitted that under Section 178 of the Code, Tehsildar has no power to edect partition based on unregistered deed of partition and thus the order of Tehsildar itself is illegal, void and deserves to be set aside. a. A bare perusal of para 6 of the impugned order would reveal that learned Board of Revenue has found the service of notice upon the respondents before the Court of Tehsildar as bad, illegal, contrary to lam/obtained by fraud by recording the following reasons for that:— (i) ‘ As per original service report, on 29-9—2004, the respondents refused to take notice whereas the order has been passed on 28—9— 2004. This service report has been subsequently changed by placing on record the service report EX. P-12, P— 13 and Ex. l3— 14. The Sub Divisional Officer found that there is tempering with the record of the Tehsildar With regard. to service report and directed police enquiry in this regard on 13-6—‘2007. (ii) Sewice rsport annexsd with the record at present shows that the notics has ba€n issuad vide- order dated 17-9-2004 for hEaring data 24-9—2004 and at the back of this notice, there is overwz‘i‘dng mad date is mentioned as 209-2004. Noiice has been served by aiflxfure and therefore, it is clear that to avoid notice of the case to the respondents, this manipulation has been done. (iii) The exparte order passed by the Tehsildar was conmary to law, which deserves to be set aside. (iv) The appeal before the firs appellate Couit was prefen ed b§ the respondents Withia 45 d» ys f101_ the date of knowledge which is in fact Within tune. 6 . mat: ~ The questions arise for decision making in this case are (i3 Whether the Board of Revenue exceeded its yinsdiction whne passing the impugned order 9 (ii) Whether while condoning the delay in fh'ng the appeal the appeilate Court can cons1der that the ex parte Cider passed by Tehsddar 1s contrary to law inasmuch as no serv1ce of summons has been eEected upon the respondents ? 7. The Supreme Court in the case of Bhanu KumarJain (Supra) observed in para 24 and 25 as under:— ‘24 An appeal against an ex parte decree m terms of Section 96(2) of the Code could be filed on the following grounds. (i) The materials on record brought on record in the ex parte proceedings in the suit by the plaimijjf would not entail a decree in his favour, and (if) The suit could not haye heen posted for ex parte hearing. 25. In an applicatian under Order 9} Rule 13 of the Code, hawever, apart from quesiioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendanz to contend that he had sutfi'a‘ent and cogent reasons for riot being able to attend the hearing of the suit on the reievant date. " 8. Therefore, it 1's permissible for the appellate Court in the appeal filed. against the ex part6 order to look into the Validity of ex palm proceedings. The Supreme Court in case of Commissioner, Nagar Panchayat, Bhilwara (Supra) and 1'11 the case of State of Jharkhand and others (Supra) has heki that While deciding application for condonation of delay in filing the appeal, the High Court could not go into the merits of the same. By applyihg the ratio laid down in the aforesaid cases, it is clear that as in the instant case, no proceeding has been preferred by the respondents under Section 35(3) of the Code, therefore, they can challenge the ex paite order even on the ground of illegality] material irregularity crept during ex part6 hearing. Learned Board of Revenue While holding that the appeal preferred by the. respondents before the first and second appellate Court is Within time, has not entered into the merits of the matter but has only observed that the ex parte proceedings before the Tehsildar suifers from element of fraud inasmuch as the service of notice has not at all been etfected upon the respondents and, therefore, appeal has been preferred within time from the ,dater of knowledge. Leamed Board of Revenue further observed that fraud vitiates everything. 9. In the judgments in the case of Ganpatbhai Mahi]ibhai Solanki (supra) and KD. Shanna (supra), the Supreme Court has held that fraud vitiates everything, The Supreme Court in the case of Indian Bank —v- Satyam Fibres (India) Pvt. Ltd. reported in (1996) 5 SCC 550 observed in para 23 thus:— “23, Since fraud adects the’so'lemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of court, the courts \QQ‘ 17L; ‘ A have been held to have inhereni power ta set aside an order obtained by fraud practised upon thai court Similarly, where ihe court is misied by a party or the court itsetf commits a mistake which prejudices a party, the court has the inherent power to recall its order........ 10. The Board of Revenue based on material on record came to the conclusion that as far as sexvice of notice upon the respondents before the Court of Tehsildar is concerned, that vitiates by fraud, and the proceedings could not have been posted for ex parte heating and, therefore, quashed the order passed by the Tehsildar also. Although any order passed by practicing fraud upon the Court is a nullity, however, learned Board of Revenue ought to have remitted back the matter to the Tehsildar for making decision afresh upon the application tiled by the petitioner under Section 178 of the Code. 11. In View of the aforesaid discussion, this petition is partly allowed. The matter is remitted back to the Tehsildar for decision afresh upon the application tiled by the petitioners afresh under Section 178 of the Code after giving full opportunity of hearing to both the parties in accordance with law. I: 7/ Sdl- Judge $ .K. Agrawa‘ §