1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4657/2008 Inder Singh & Ors. Vs. Board of Revenue & Ors. Date of order : 15/12/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Deepak Pareek for the petitioners. Shri P.K. Sharma for the respondents. ****** REPORTABLE This writ petition has been filed by the petitioners who were defendants before the Court of SDO, who has dismissed the suit filed by the plaintiff-respondent and has decreed the cross objection filed by the petitioner by judgement dated 17.1.2004. It is contended that the land was given to the respondent for cultivation on fixed payment of salary of Rs.1,000/- per month for a period of three months. For first two years, he paid money but for the third year, he did not and forceably took possession of the land. According to the petitioners, the respondent was granted number of opportunities to lead evidence. He did not produce the evidence. Matter was then proceeded ex-parte against him and finally when he did not appear, nor his counsel appeared, the learned SDO, Hindoli passed an ex-parte decree against him in pursuance to which possession of the land was restored to the petitioners. Learned counsel contended 2 that the Revenue Appellate Authority has erred in law in allowing the appeal of the respondent by accepting his application under Order 9 Rule 13 of CPC setting aside the ex-parte decree and remanding the matter for rehearing. The Board of Revenue also committed a serious illegality in upholding the order passed by the Revenue Appellate Authority. Learned counsel cited the judgment of this Court in Madan Lal & Ors. vs. Prabhu Dayal & Ors.- 2009 (1) WLC (Raj.) 724 to argue that when it is shown that the defendant was given number of opportunities and he did not avail the opportunity and did not produce evidence, the ex-parte decree cannot be set aside merely at his askance. It was argued that in that case too, the decree had been executed. Learned counsel also cited the judgement in Bhagmal vs. M.P. Cooperative Marketing and Consumer Federation Ltd. & Ors.-AIR 2004 SC 1230 to argue that for making application for setting aside ex-parte decree, limitation should start running from the date of knowledge. In the present case, respondent admitted that he acquired knowledge of the ex-parte decree much earlier. The application which was filed with much delay ought to have been rejected. Learned counsel also cited judgement of Karnataka High Court in M/s. Rukmini Charity Trust vs. M/s. Asopa Steel Corporation & Ors.-1991 (1) Civil LJ 843 for the same proportion. 3 Per contra Shri P.K. Sharma, learned counsel for the respondent argued that the Revenue Appellate Authority allowed the appeal giving cogent and valid reasons. It was specified that the respondent was prevented by sufficient cause in not filing application in time. The respondent had gone out of his native place to earn his livelihood and there he became ill and ultimately lost vision of both the eyes. He was an illiterate person and that he prima facie satisfied the Revenue Appellate Authority that he was in continuous possession of the land in dispute for more than 5 decades. Learned counsel submitted that the plaintiff-respondent produced copy of the khasra girdawavi from Svt. 2017 to 2020 wherein his father's name was recorded in column no.16 as farmer. The `milan shetraphal' for Svt. 2028 to 2047 shows that the new khasra number is 325, which was also corroborated from receipts of irrigation charges produced by the respondent in his name. Khasra girdawari of Svt. 2030 to 2031 was also produced. Learned counsel for respondent argued that the Board of Revenue relied on the judgement of Supreme Court in N. Balakrishnan vs. M. Krishnamurti-AIR 1998 SC page 3222 wherein concept of sufficient cause has been examined and also the judgment of Supreme Court in Bhagmal, supra to the same effect. It is contended that 4 once the Revenue Appellate Authority has exercised its discretion in a lawful manner and the Board of Revenue has upheld the same, this Court just because the defendant- petitioners have chosen to challenge those orders on the ground of execution of decree, should not interfere with them because neither of the two orders suffer from any such illegality, which can be said to occasioned any failure of justice or otherwise based on any perverse or erroneous finding so as to be treated as error apparent on the face of the record. Having heard the learned counsel for the parties, I find that the Revenue Appellate Authority in para 13 of its judgement has passed a very detailed and comprehensive order and it has given valid reasons for its satisfaction as to the sufficient cause. It is not in dispute that the suit was filed by the respondent herein in which cross objection of the petitioner, which was defendant in that suit, has been decreed against the plaintiff-respondent himself. It is also not disputed that the evidence of the respondent could not be recorded and the Revenue Appellate Authority has set aside the ex-parte order simply granting him opportunity to adduce evidence and required the learned trial court to decide the suit afresh. The Board of Revenue has affirmed that order relying on the Supreme Court judgement in N. Balakrishnan. In that case, 5 it was held that once the court accepts the explanation as sufficient which is the result of positive exercise of discretion, normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless exercise of discretion is wholly untenable or arbitrary or perverse. It was further held that it would be different matter if the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay, afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court. What flows from the ratio of that judgement by the Supreme Court is that a distinction has to be made between cases where delay has been condoned and matter is brought before the superior court, accepting the explanation offered by the concerned party and in cases where such delay has been refused to have been condoned. In the former category of cases, the parameters that are applicable to revisional and supervisory jurisdiction of this Court would be guided by the consideration that it would interfere with such distinction exercised by the Court only if it is shown that such exercise of the discretion was wholly on intangible ground or otherwise arbitrary, perverse or erroneous. The present matter falls in the former category wherein the discretion has 6 been positively exercised in favour of the respondents by the Revenue Appellate Authority and it would require something more than mere illegality in that order to justify interference by the trial court. The Supreme Court in N. Balakrishnan also therefore rightly held that the primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time limit fixed for approaching the Court in different situation is not because on the expiry of such time a bad cause would transform into a good cause. The Board of Revenue also relied on the judgement of Supreme Court in M.K. Prasad vs. P.Arumugam-(2001) 6 SCC 176 and Ram Nath Sao vs. Gobardhan Sao-(2002) 3 SCC 195 and also Bhagmal, supra, wherein also the Supreme Court has consistently maintained that the explanation sufficient cause, must receive liberal consideration. I therefore do not find any merit in this writ petition, which his accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/-