RAGHBIR SINGH Vs. FINANCIAL COMMISSIONER

JUDGEMENT

(1.) Two questions have been raised by Shri Mittal, learned counsel for the petitioners in this case. The first is that respondents No. 4 to 7 could not file an appeal against the review order dated 10th June, 1971, dismissing the petition of the respondents No. 4 to 7, to recall the ex parte decree passed on 19th June, 1969 and the learned Collector, Rohtak, learned Commissioner, Ambala and the learned Financial Commissioner, Haryana, while passing orders Annexures P.4, P.5 and P.6 respectively were in error to decide the matter against the petitioner. The second argument addressed on behalf of the petitioner is that even if the first argument does not succeed, then the ex parte decree could not be set aside as the application for this was not made within 30 days of the passing thereof, as is required under Article 123 of the Limitation Act. The second limb of this argument is that no aid was ever invoked by these respondents of Section 5 of the Limitation Act of the condonation of the delay.

(2.) The relevant facts of the case are that the petitioners who are tenants under respondents No. 4 to 7, were litigating with these respondents in the Revenue Courts for the acquisition of occupancy rights. There were certain rounds of litigation upto the higher Courts and the case was ultimately remanded by the Collector for 11th September, 1968 before the Assistant Collector Ist Grade, Sonepat for recording of evidence. After remand, on September 26, 1969, both the parties, along with their counsel, were present before the Assistant Collector. The case was adjourned from time to time and these respondents or their counsel appeared before the Assistant Collector till 19.6.1969. On that date neither the respondents No. 4 to 7, nor their counsel appeared and the proceedings were taken ex parte against them. On that date, evidence of some witnesses of the petitioner was recorded and the case was posted for 27.6.1969. On this date, again, some witnesses were recorded and evidence in the case was closed. The case, again, saw some adjournment till 17.7.1969 when the Assistant Collector was transferred. The new officer who took over was not invested with the powers. After conferment of the powers, the Assistant Collector adjourned the case to 29.10.1969. On the last mentioned date, he heard arguments and passed ex parte decree on the 30th October, 1969. Respondents No. 4 to 7 on 5.1.1970 filed an application under Order IX Rule 13 of the Code of Civil Procedure (Annexure P.2) for setting aside the ex parte decree. The petitioners then joined issues with those respondents. After the framing of the issues and recording of the evidence, the Assistant Collector, vide order dated 10.6.1971, dismissed the application of the respondents Nos. 4 to 7, seeking the setting aside of the ex parte decree, holding that the absence of the respondents in the Court of the Assistant Collector was wilful. The matter was taken in appeal by respondents Nos. 4 to 7 and the Collector, Rohtak, vide his order dated 23.11.1971 (Annexure P.4), accepted the appeal, on the ground that as the Assistant Collector did not issue notice to these respondents after he was invested with the powers and relying on Mian Mohinder Singh v. Shri Palla Singh, 1971 73 PunLR 895, he accepted the appeal and remanded the case back to the Assistant Collector for further proceedings. Both the revision petitions preferred before the Commissioner, Ambala and Financial Commissioner, Haryana, Chandigarh did not meet with success as is evident from orders Annexures P. 5 and P. 6 respectively.

(3.) The petitioners have challenged the orders (Annexures P.5 and P.6) through this writ petition under Articles 226/227 of the Constitution of India and after giving the history of the litigation and the large number of adjournments which the cases saw before different authorities. At the motion stage, the learned counsel for respondents No. 4 to 7 put in appearance. Notice for the actual date was served on the respondents, but they have not put in appearance to contest the petition.