HON’BLE SRI JUSTICE D.V.S.S.SOMAYAJULU CIVIL MISCELLANEOUS APPEAL No.382 OF 2009 JUDGMENT This appeal is filed against the order dated 29.12.2004 passed in I.A.No.35 of 2003 in L.A.O.P.No.67 of 1991 by the Senior Civil Judge, Gudur. The petitioners/appellants filed I.A.No.35 of 2003 under Order IX Rule 13 read with Section 151 CPC before the Court below to set aside the ex parte order dated 19.08.1996 passed against the deceased claimants; to allow them to file claim statements and add them as the legal representatives of the deceased claimants. After a hearing, the Court below dismissed the application. In para 7 of the said order, it was also held that L.A.O.P.No.67 of 1991 was disposed of confirming the award passed by the Land Acquisition Officer on 09.12.1996. This order is now challenged in the present appeal. Heard Sri Ch.C.Krishna Reddy, learned counsel for the appellants and the learned Government Pleader for Arbitration. Learned counsel for the appellants submitted that once a reference is made to the Court under Section 18 of the Land Acquisition Act (for short ‘the Act’), the Court is bound to pass an award. He further submitted that whatever be the conduct of the party in the Court below, (whether they have appeared or not, whether they have filed claims) a statutory duty is enjoined upon the Court to pass an award in terms of Section 26 of the Act. He relied upon a decision reported in M.S.Ramaiah and others v. 2 Special Land Acquisition Officer1 where in similar circumstances it was held that despite the omissions of the claimants, a duty was cast upon the Court to make an award in terms of Section 26 of the Act. He also relies upon the judgment of the Hon’ble Supreme Court in Khazan Singh (dead) by LRs v Union of India2 wherein it is held that non-participation of any party would not confer jurisdiction on the civil Court to dismiss the reference for default. Learned counsel points out that Section 26 of the Act was considered in this case and thereafter the Supreme Court set aside the default order passed by the District Court and directed the District Court to answer the reference in accordance with law and pass an award in terms of Section 26 of the Act. Learned counsel for the respondent on the other hand submits that the impugned order was passed after a great deal of latitude was given to the petitioners but they did not care to appear despite the time granted. Therefore, as per him the Court rightly passed the order. This Court notices that the Court below disposed of L.A.O.P.No.67 of 1991 on the ground that the claimants are not interested to prosecute the O.P. The learned Judge felt that there is no use if the O.P. is kept pending for some more time and passed the award. Considering the overall facts and the law, it is apparent that the Court below did not follow the mandate of law. If the Court had independently applied its mind and came to a conclusion about the compensation payable, the situation would have been different. In the present case, the Land Acquisition Officer closed the O.P. mechanically. In view of the judgment in 1 AIR 1974 Karnatak 123 2 2002(1) Supreme 250 3 Khazan Singh (dead) by LRs v Union of India (2 supra), this Court is of the opinion that the default order should be set aside and the Court below is directed to independently come to a conclusion about the reference. This Court is also of the opinion that the appellants are entitled to one last opportunity. A reading of the affidavit makes it clear that they were not aware of the pendency of the case. The grandfather was pursuing the matter and they were not actually aware of the pendency of the case. Their grandfather died and later their father also died. Therefore, in these circumstances, they have filed the application to set aside the ex parte order. This Court feels that as the appellants are agriculturists and taking into consideration of the submission of the learned counsel that the appellants are not well educated, a lenient view should be taken. The causes explained by the learned counsel for the appellants are also held to be satisfactory. As the Court below committed an error in dismissing the case for default and passed an order, this Court is of the opinion that opportunity may be given to the appellants. In the result, the Appeal is allowed and the Court below is directed to hear the matter afresh and dispose of the same in accordance with law within a period of two months from the date of this order. Parties shall cooperate for the early disposal of the matter. No costs. The Miscellaneous Petitions, if any, pending shall stand closed. __________________________ D.V.S.S.SOMAYAJULU, J Date : 23.02.2018 ssp