Letters Patent Appeal No.626 of 2009 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Letters Patent Appeal No.626 of 2009 Date of decision: 7.08.2009 *** Charanjit Singh @ Charni ...Appellant Versus Financial Commissioner (Appeals) Punjab and others ...Respondents CORAM: HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE S.D.ANAND. Present: Mr. J.S.Brar, Advocate for Mr. R.S.Dhaliwal, Advocate for the appellant ***** J.S.KHEHAR, J.(ORAL) Through the instant Letters Patent Appeal, the appellant has assailed the order passed by this Court on 27.4.2009 while disposing of the Civil Writ Petition No.6281 of 2009. During the course of hearing, the sole emphasis at the hands of the learned counsel for the appellant was on the following extracted portion of the order passed by the learned Single Judge:- “ The facts as noticed above would show that the petitioner was not effectively served. Notice issued to him was for 28.8.2007 which date had gone passed on the date this notice was issued. This date was corrected to 28.9.2007 but it is not clear if this Letters Patent Appeal No.626 of 2009 -2- *** was the date on notice to the petitioner. The case was then heard on 1.10.2007. It can, thus, be said that proper service was not effected on the petitioner.” Having arrived at the conclusion that Dalip Singh i.e. petitioner in Civil Writ Petition No.6281 of 2009 had not been duly served, and accordingly, having further concluded that he had not been afforded an opportunity of hearing to present his case before the concerned authority, the Learned Single Judge remanded the matter to the Assistant Collector Ist Grade, Sunam for an effective determination in accordance with law. The sole objection of the learned counsel for the appellant while canvassing the claim of the appellant was, that as a matter of fact, Dalip Singh-respondent no.3 herein, had been duly served. The first contention advanced by the learned counsel for the appellant in this behalf was based on the order passed by the Divisional Commissioner, Patiala Division, Patiala dated 29.5.2007. The Divisional Commissioner, Patiala Division, Patiala by his aforesaid order had directed the parties to appear before the Assistant Collector Ist Grade, Sunam on 31.7.2007. It is, therefore, the contention of the learned counsel for the appellant, that it was not necessary for the Assistant Collector Ist Grade, Sunam to effect service on him yet again, and as such, the reasoning recorded by the learned Single Judge in his order dated 27.4.2009 was wholly unjustified. Insofar as the instant issue is concerned, the learned counsel for the appellant very fairly invited our attention to the averment made in paragraph 18 of the writ petition. Paragraph 18 of the writ petition is being extracted hereunder:- Letters Patent Appeal No.626 of 2009 -3- *** “That it is specifically submitted here that on 31.7.07, the present petitioner alongwith his counsel appeared before A.C.Ist Grade, Sunam but the petitioner was told that since the file from Ld. Commissioner, as yet has not been received and hence no further action can be taken, as of today. The reader of the A.C.Ist Grade, Sunam told that as and when the file will come, the parties will be informed through notice.” The factual position narrated in paragraph 18 of the writ petition was not controverted by the appellant herein. Thus, it is natural to conclude, that in compliance with the direction issued by the Divisional Commissioner, Patiala Division, Patiala dated 29.5.2007, Dalip Singh- respondent no.3 herein, had actually appeared before the Assistant Collector Ist Grade, Sunam on 31.7.2007. During the course of proceedings before the Assistant Collector Ist Grade, Sunam on 31.7.2007, he was informed that the records pertaining to the controversy had not been received from the office of the Divisional Commissioner, Patiala Division, Patiala, and as such, a fresh date would be intimated to him through a notice. In view of the stand adopted by Dalip Singh respondent no.3 in paragraph 18 of the writ petition which was not disputed by the learned counsel for the appellant, it is not possible for us to accept, that there was no requirement to serve respondent no. 3 afresh, during the course of proceedings before the Assistant Collector Ist Grade, Sunam. The second contention advanced by the learned counsel for the appellant during the course of hearing of the instant appeal was, that the notice issued to Dalip Singh, was actually served on respondent no.3, Dalip Letters Patent Appeal No.626 of 2009 -4- *** Singh, during the course of proceedings before the Assistant Collector Ist Grade, Sunam. Additionally it is pointed out that Dalip Singh-respondent no.3 had refused to accept the aforesaid notice, and had therefore, been proceeded against exparte on 1.10.2007. Having refused to accept notice served on Dalip Singh-respondent no.3, he could not assail the determination by the authorities on account of the fact that he had not been afforded an opportunity of hearing. We have given our thoughtful consideration to the second contention advanced by the learned counsel for the appellant. It emerges from the order passed by the learned Single Judge dated 27.4.2009 (extracted herein above) that Dalip Singh-respondent no.3 was required to be served on 28.9.2007. The notice issued to him had, however, depicted 28.8.2007 as the date of hearing. It is not the matter of dispute that on the date of issuance of aforesaid notice, the date depicted on the summons (namely, 28.8.2007), had already gone by. It was in that sense, a notice which had no sanction in the eyes of law. All the same, it is further apparent from the record of the instant appeal, that 28.9.2007 was actually a holiday. In this view of the matter also, the aforesaid notice had no sanction in the eyes of law. It is on account of the defective notice, that the learned Single Judge had remanded the matter back to the Assistant Collector Ist Grade, Sunam, requiring him to afford an opportunity of hearing to Dalip Singh-respondent no.3, and thereafter, to pass an order in accordance with law. In view of the facts depicted herein above, we are satisfied that the aforesaid order was fully justified in the background of the facts narrated above. Letters Patent Appeal No.626 of 2009 -5- *** The third and the last contention advanced by the learned counsel for the appellant was, that even on earlier occasion, prior to 1.10.2007 Dalip Singh-respondent no.3 had been proceeded against exparte. It is, therefore, submitted that Dalip Singh is intentionally trying to delay the partition proceedings so as to prejudice the appellant. Insofar as the alleged earlier exparte orders passed against Dalip Singh-respondent no.3 is concerned, learned counsel for the appellant acknowledges, that the aforesaid orders were all recalled. He also acknowledges that he did not impugn the order by which the exparte order passed against Dalip Singh-respondent no.3 was set aside. Thus, we have no other alternative but to accept that the aforesaid orders were in consonance with law, and had been accepted by the appellant. We, therefore, find no merit in the instant contention of the learned counsel for the appellant. For the reasons recorded herein above, we find no merit in the instant appeal, and the same is accordingly dismissed. (J.S.KHEHAR) JUDGE August 07, 2009 (S.D.ANAND) Pka JUDGE