1 8 S.B. CIVIL WRIT PETITION NO.7002/2009. Narendra & Ors. Vs. State of Rajasthan & Ors. Date of Order :: 31st July 2009. HON'BLE MR. JUSTICE DINESH MAHESHWARI Mr. Sudheer Sharma, for the petitioners. ... BY THE COURT: Having heard the learned counsel for the petitioners and having perused the material placed on record, this Court is unable to find any reason to entertain this writ petition against the order dated 20.05.2009 (Annex.8) as passed by the Board of Revenue for Rajasthan, Ajmer (‘the Board’) in Appeal No. 2894/2008 whereby the Board, while setting aside the order dated 17.03.2008 (Annex.7) as passed by the Revenue Appellate Authority, Bikaner (‘the RAA, Bikaner’) has restored the appeal before the said appellate authority for consideration on merits. The relevant background aspects of the matter are that the plaintiffs-respondents Nos. 6 to 9 had filed a revenue suit (bearing No.20/1998) under Sections 88, 91, and 183 of the Rajasthan Tenancy Act against the petitioners before the Sub- Divisional Officer, Sriganganagar that was dismissed after trial on 28.02.2007. The plaintiffs preferred an appeal before the 2 Revenue Appellate Authority, Sriganganagar (‘the RAA, Sriganganagar’) but the present petitioners (respondents in the said appeal) moved an application before the Board seeking transfer of the appeal from the RAA, Sriganganagar to the RAA, Bikaner. The transfer application so moved by the present petitioners came to be allowed rather with the consent of the parties; and, by the order 26.04.2007, while transferring the appeal to the RAA, Bikaner, the Board directed both the parties to appear before the said appellate authority at Bikaner on 28.05.2007. According to the petitioners, on 28.05.2007, though they put appearance before the RAA, Bikaner but, for the appellants (respondents No. 6 to 9 herein) being not present, the matter was adjourned to 30.05.2007; and, on 30.05.2007, for the plaintiffs-appellants being not present again, the appeal was dismissed for non-prosecution. According to the petitioners, after the aforesaid order dated 30.05.2007, they took up the proceedings seeking recovery of possession of the land in dispute; and the land was handed over in their possession on 05.06.2007 after recording such proceedings in Ghatna Bahi. However, the respondents moved an application for restoration of the appeal before the RAA, Bikaner on 24.12.2007 that was directly allowed and the appeal was 3 ordered to be restored for consideration. This order of restoration having been made without notice to the petitioners, they moved an application for recalling of the same; and, while allowing the application so moved by the petitioners by the order dated 19.02.2008, the RAA, Bikaner posted the matter for re-consideration of the application for restoration of the appeal. Though the present respondents preferred a revision petition before the Board of Revenue against the said order dated 19.02.2008 but the Board did not interfere and rejected the revision petition on 25.02.2008. Thereafter, the RAA, Bikaner considered the restoration application and proceeded to reject the same by the order dated 17.03.2008 on the considerations, inter alia, that though having acquired the knowledge earlier, the appellants had filed the false affidavit in the restoration application moved after about six months. The learned RAA pointed out that the application for restoration was moved on 24.12.2007 alleging the date of knowledge as 22.12.2007 whereas Ghatna Bahi dated 05.06.2007 carried the signatures of Raghuveer (respondent No.9 herein). Aggrieved of the said order dated 17.03.2008 rejecting their application for restoration, the respondents Nos.6 to 9 preferred an appeal before the Board that has been considered and decided by the impugned order dated 4 20.05.2009. The learned Members of the Board pointed out, inter alia, that there had been specific assertion of the appellants about themselves being not aware of the date of hearing in the appeal for their counsel at Ajmer having not informed about the order earlier passed by the Board fixing the date of appearance before the RAA, Bikaner; and there was no counter to such an affidavit. The learned Members of the Board observed that for a mistake of the lawyer, the party could not be penalised. The learned Members further observed that the matter related to declaration, correction of record, and possession; and if the same would not be heard on merits, there would be the likelihood of adverse effect on the rights of the appellants. The learned Members of the Board, thus, allowed the appeal and so also the restoration application; and restored the appeal before the Revenue Appellate Authority, Bikaner for consideration on merits. Though it has been sought to be argued in this writ petition in challenge to the order so passed by the Board that the plaintiffs have not filed correct affidavit before the Authorities and the fact of dismissal of their appeal had been in their knowledge for the proceedings for recovery of possession having been taken but then, the learned Members of the Board have clearly pointed out that the assertions of the 5 appellants were not countered with specific affidavit. Looking to the nature of controversy and the nature of the rights involved, there appears no reason that the plaintiffs-appellants would have avoided the proceedings intentionally; and looking to the overall circumstances, for any gap in communication regarding the order for transfer of the matter from the RAA, Sriganganagar to the RAA, Bikaner and date of appearance before the RAA, Bikaner, the plaintiffs-appellants cannot be penalised to the extent that their matter be not considered on merits. The view as taken by the learned Members of the Board remains in accord with the fundamental principles of dealing with the matters on merits rather than on technicalities. The impugned order does not suffer from any jurisdictional error or illegality nor leads to failure of justice. No case is made out for interference in the writ jurisdiction. The writ petition, therefore, stands rejected. (DINESH MAHESHWARI), J. //Mohan//