Decided on October 12,1960

KISHORILAL Respondents


- (1.)THIS is an appeal against the order of the S. D. O. Gangapur, dated 26. 9. 59 in a matter for correction of entries in the Settlement Records against an area of 9-3/4 Bighas of Khasra No. 2578 of village Raisana.
(2.)WE have heard the learned counsel for the parties and examined the record. A preliminary point has been raised on behalf of the respondent that the appeal was time barred, the same having been presented on 2. 3. 60 against the judgment dated 26. 9. 59, clearly after the expiry of 90 days and no regular application having been submitted for the condonation of delay for any sufficient reason under Sec. 5 of Indian Limitation Act, and that this appeal could not therefore be heard. No separate application has been submitted for an action under sec. 5 of the Limitation Act. But in para No. 5 of the memorandum of appeal itself a request has been made in this connection on the ground that the appellant came to know of the impugned order only on 17. 1. 60. No affidavit, however, has been submitted to support this allegation. Rule 17 (d) of the Rajasthan Revenue Courts Manual Part 1 requires that in the case of memorandum of appeal which is filed after the expiry of limitation an application supported by an affidavit for extention of the period of limitation under sec. 5 of the Indian Limitation Act "shall accompany the memorandum of appeal". There is thus a clear breach of this rule. It has been argued by Shri Tiwari in this connection that when impugned order was passed behind his back the date of the order should be deemed to be the date on which he came to know of it and the period of limitation should be calculated from that date. He has cited authorities in this behalf, and it has been contended therefore that no such application nor any affidavit was required to be filed by him. In the first place this contention is belied by the very wordings of para 5 of the memorandum of appeal filed by him. He has himself requested therein to give the benefit of sec. 5 of the Limitation Act to the appellant. If the date of the order was to be the date of the knowledge thereof by his client in this case and the period of limitation was also to be counted from that very date, there would not have remained any need of his making a request for being given the benefit of sec. 5. The law, however, is that no appeal can, vide sec. 78 of the Rajasthan Land Revenue Act 1956, lie to the Board after the expiry of 90 days from the date of the order to which objection be made. The appeal is against the order dated 26. 9. 59. The period of limitation would therefore run from the date of this order. This Order could have been deemed to have been passed not on 26. 6. 59, but on such other date, as the appellant claimed, he came to have knowledge thereof, in case where hearing was continuing on dates and a further adjournment had been made without fixing any dace and on such date without any pervious information and the judgment had been pronounced and the information thereof had also not been given to them. In that case also it could have been so done only under sec. 5 of the Indian Limitation Act, and not otherwise, if the statute fixing the period of limitation for an appeal would have so fixed the period so as to commence from the date of the order against which the appeal was made. In this case as stated above the period of 90 days having been fixed by sec. 78 referred to above from the date of the order, the absence of knowledge of the same by the appellant could be considered to be a sufficient cause for condoning the delay in the filing of the appeal by the appellant only under sec. 5 of the Indian Limitation Act. For getting the benefit thereof however the statutory rules framed under sec. 261 of the Rajasthan Land Revenue Act have prescribed a certain procedure vide R. 17 (d) referred to above. The rules are mandatory, and the appellant followed them, his request for condoning the delay could very well be refused to be considered. Shri Tiwari has not been able to show us any authority which could enable us to have the compliance of this mandatory provision of law. It is so evidently necessary that the appellants should have filed an affidavit also to support his claim that he came to have the knowledge of the order appealed against only on 17. 1. 60 and not before. There is no provision nor any authority, to support the contention that in cases of having a knowledge of an order long after the passing thereof also a full period of limitation prescribed by law would be allowed to the appellant. From such a date of knowledge, he is expected to expedite the matters after that and has to bring his case before the appellate court in the manner prescribed as discussed above as soon as possible, and if he does not do so he must be made liable to explain every days delay made by him in this behalf. There is nothing so far on the record to show that the appellant came to have the knowledge of the order appealed against only on 17. 1. 60. Nor is there any thing on record to support his contention that he came to have the knowledge thereof when he made the application for the copy of certain records. It is ofcourse true that the order has been passed by the learned S. D. O. without calling the parties or letting them have an opportunity of being heard. Nor has he passed any order to convey the information of the same to them. But that by itself cannot be sufficient to go to show that the appellant came to have a knowledge thereof only on 17. 1. 60. Much less can it meet the requirements of law that he has had sufficient reasons for not preferring the appeal even upto 2. 3. 60 after that. The appeal therefore can be neither treated to have been filed within the period of limitation; nor can there be held to have been a sufficient cause otherwise for its being preferred on 2. 3. 60 and condoning the delay under sec. 5 of the Limitation Act.
This is, however, a fit case where we must exercise our powers of general superintendence and control over the subordinate Revenue Courts under Sec. 9 of the Rajasthan Land Revenue Act, 1956. We have given an opportunity to the learned counsel for the respondent to address us on this point by pointedly asking him as to why we should not exercise our powers of revising the, impugned order if it is not found to have been passed in accordance with law prescribed in this behalf. The learned counsel for the respondent has not done so. It is an admitted case between the parties that Kishorilal, respondent submitted an application to the Collector for having the disputed entries corrected which was forwarded by him to the Tehsildar Nadoti. Some such applications were also presented by the respondent. Ultimately the Tehsildar passed certain orders thereon. The final order was dated 3. 7. 51 that the papers be put up for the orders of the Settlement Officer. An application to review this order was submitted by the respondent on 7. 7. 58 to the Tehsildar with the allegation that the powers of the settlement Officer had since been conferred upon the S. D. O. Gangapur and therefore the papers be ordered to be forwarded to the S. D. O. Upon this the learned Tehsildar reopened the case and at the same time on the request of the respondent allowed him to submit further evidence. Having taken further evidence and on the basis of certain agreement alleged to have been arrived at between the parties and acting on the request of the respondent that the powers of the Settlement Officer had been conferred upon the S. D. O. Gangapur, submitted the papers to the S. D. O. on 2. 8. 58, who in his turn submitted them to the Collector. The Collector returned the papers with the remarks that the S. D. O. was competent to pass final orders in the matter. On so receiving back the papers the learned S. D. O. Gangapur without sending for the parties and giving them an opportunity of being heard, accepted the recommendation of the Tehsildar and returned the papers for compliance.

The Tehsildar also did not inform the parties of this order but directed the correction to be made in the revenue papers. Thus not only at one stage but at all stages, the provisions of law have been clearly ignored in this case. No body has cared to see whether the Tehsildar was competent to review his own order or not and whether he had done so rightly in accordance with law or not. The provisions of review are described in sec. 86 of the Rajas-than Land Revenue Act 1956. An order once passed can be reviewed and varied or reversed only after a notice has been given to the parties concerned and they have been heard. The learned Tehsildar did no: proceed to view his order after complying with this clear provision of Sec. 86 (2 ). He straightaway allowed the respondent to produce further evidence. The S. D. O. put aside all the provisions not only of law but also the principles of natural justice in passing the order that he did without even calling the parties and giving them an opportunity of being heard. He was empowered to decide judicially the rights of the parties, he was doing so in his judicial capacity and he was therefore bound to afford to the parties an opportunity of being heard before doing so. The principles of natural justice enjoined it. As he has not done so and has also not considered whether the Tehsildar had reviewed his orders rightly or wrongly, the orders appealed against cannot be allowed to remain in force. Under sec. 2 of the Act we possess the same powers as the High Courts under Art. 206 of the Constitution to set right the courts below wherever they leave the path prescribed by law and act in complete disregard thereof. For reasons given above, this is a fit case to exercise these powers.

Accordingly, we accept this appeal and direct that orders of the learned S. D. O. Gangapur dated 26. 3. 59 shall be set aside, and the case is remanded back to him for deciding afresh in accordance with law keeping in view the observations made above. Per Shri Khemchand: - I agree with my learned brother that the result of this case should be accept the appeal and remand it for a fresh trial. However, with due deference to him, I cannot agree with his decision on the point of limitation. I venture to record my reasons for holding a different view from him as under: - The appeal arises out of an order of the Sub Divisional Officer Gangapur dated 56. 9. 1959 in a matter relating to correction of entries. It is an admitted fact that the learned Sub Divisional Officer passed this order without pronouncing it in the open court and in the absence of the parties. He has dated the order 26. 9. 59. The point raised on behalf of the respondent is that the appeal which was filed on 2. 3. 60, was barred by limitation. My learned colleague has agreed with his contention holding that sec. 78 of the Land Revenue Act provides for an appeal to the Board of Revenue in 90 days from the date of the order and because the date of the order in this case is 26. 9. 1959 the appeal is petantly outside limitation. With this view I am unable to agree. In my opinion this order has no date. The dating of the order is a judicial act and its procedure is provided in O. 20, R. 3. As a matter of fact we have to read rule 1 and 3 of O. 20 together. R. 1 of O. 20 provides that "the court, after the case has been heard, shall pronounce judgment in open Court, either at once or, as soon thereafter as may be practicable, on some further days; and when the judgment is to be pronounced on some further days, the court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders". Rule 3 of O. 20 carries us to the state of dating and signing of the judgment. The Rule reads : "the judgment shall be dated and signed by the Judge in open court at the time pronouncing it,. . . . . . . . . . . ". Now the impugned order before us was never pronounced by the learned Sub Divisional Officer in open court and therefore he cannot be deemed to have dated and signed it at the time of pronouncing it. Accordingly, only this can be held that this order bears no date. No doubt sec. 78 of the Land Revenue Act contemplates the date of the order but the date contemplated there is the date which is put down on the judgment in accordance with the provisions of Rule 1 and 3 of O. 20. Since this has not been done, even at the risk of repetition I would say that this order bears no proper or legal date and there can be no question of limitation running from 26. 6. 59 which was most improperly and illegally put down by the learned Sub-Divisional Officer. But as my learned colleague has formed another ground I propose to set aside the order, I concur with him in the result of the case. .


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