MOHD MURTAZA KHAN Vs. ABDUL QADDUS KHAN
HIGH COURT OF RAJASTHAN
MOHD MURTAZA KHAN
ABDUL QADDUS KHAN
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(1.)THIS is a revision petition against an order of the Sub-Divisional Officer Chhabra dated 8. 3. 1960 whereby he rejected the applicants' application for a review of its order dated 12. 9. 59. The brief facts are that the non-applicant had instituted proceedings under sec. 183 of the Rajasthan Tenancy Act against Mohd. Murtaza Khan and others in the court of the Sub-Divisional Officer Chhabra. The applicant as well as the other persons did not appear on the date of hearing inspite of summons having been duly served on them. Thereupon the trial court recorded an ex-parte order against them and directed the non-applicant to produce ex-parte evidence in support of his claim. The non-applicant examined certain witnesses and the trial court passed an ex-parte degree against the applicants and others on 22. 9. 59. The non-applicants thereupon filed a review petition before the trial court in which one of the main grounds taken was that their non attendance on the date of hearing was due to the fact that the non-applicant fraudulently made them to believe that he would be willing to take 'munafa' of the land and allow the applicants to remain in possession of the land and he would not also appear in the court on the date of hearing nor was it necessary for the applicants to appear in the court and that as a result of their non-appearance, the proceeding shall be dismissed in default. The contention was that inspite of this the non-applicant appeared on the fixed date in the court and obtained an ex-parte decree behind the back of the applicants. THIS contention was examined by the lower court in the review petition and it came to the conclusion that it was not a sufficient ground within the meaning of O. 47 Rule 1 to allow the review petit on and re-open the case. Accordingly the application was dismissed. Hence this revision has been filed before us. The learned counsel for the opposite party raised a preliminary objection about the maintainability of this review petition on the ground that the trial court having rejected the review petition on merits it was not open to revision unless it could be shown that the court had erroneously thought that it had no jurisdiction to deal with the application. It was also urged that the proper remedy for the applicants was to have approached the court in the first instance to set aside its ex-parte order and in the event of its refusal to do so he should have filed an appeal against the ex-parte decree and having failed to do so, the last alternative remedy was to file a suit to have the ex-parte decree set aside on the basis of the alleged fraud. The submission was that as the applicants had failed to avail of any of the statutory remedies, the review application was rightly rejected by the lower court. In support of this contention, he relied on 1953 AIR page 153 Rajasthan where it was held that if an applicant can come 111 appeal from the decree itself, an order rejecting his review petition cannot be taken in revision. In 26 All. page 572 which was quoted with approval by the Rajasthan High Court`, it was also held that where an application for review on the ground of discovery of new and important matter was dismissed on merits, the matter cannot be taken in revision to the High Court. In a subsequent decision AIR 1943 Mad. page 37-7 which also was relied upon by the Rajasthan High Court` it was held that if the petitioners could have appealed against the judgment and such remedy was available sec. 115 C. P. C. should not be invoked. THIS rule of law was made absolute by further observation that undoubtedly if a party has a right to come in appeal from the original decree he should do so and the High Court would not interfere in revision with the order in rejecting an application for review. In the present case the applicant had, as already stated above, three remedies open to him. He could come to the court to set aside the ex-parte proceedings; he could as well apply for setting aside the ex-parte decree and lastly he could also file a suit as contemplated in O. 9 R. 13 C. P. C. to set aside the decree on the ground of fraud alleged to have been played on him by the opposite party. The counsel for the applicant failed to give any explanation as to why any of these three remedies was not persued. Again in the present proceedings, the trial court found that the allegations of fraud were not established to its satisfaction and that therefore there was no sufficient cause to allow the review petition. In a decision on merits a revision is hardly competent. The submission that the trial court came to this finding without making any enquiry is devoid of any substance because the applicants never made a request for holding any enquiry and there is no provision of law which might cast a duty upon a court to make enquiries suo-moto in such matters. There is no suggesion that prayer was ever made by the applicants for holding an enquiry and that the same was refused by the court. In this view of the matter we hold that the present revision petition is bound to be dismissed; and accordingly we direct that it should be so dismissed. .
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