- (1.) S. N. Shukla, Member. The question referred for decision by this Full Bench is: "does the decision of the Full Bench of the Board in Ashok Kumar v. Smt. Sheoranya, 1996 RD 504 (FB), interpret the law correctly or setting aside or revocation of an ex-parte order amounts to its reversal or alteration requiring prior notice to the other party as per proviso to Section 201 of the UPLR Act?"
(2.) TO answer this question one needs to have a look at the proviso to Section 201 of the UPLR Act which is reproduced below: "provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it. " In the case of Ashok Kumar v. Smt. Sheoranya, 1996 RD 504, Ashok Kumar had applied for mutation on the basis of Will which was allowed in the absence of any objection. Subsequently, a restoration application was moved by Smt. Sheoranya on the ground that she is widow of the recorded tenant who never executed any Will and, therefore, the ex-parte order in favour of Ashok Kumar be set-aside. The restoration was allowed and mutation order in favour of Ashok Kumar was set-aside. Ashok Kumar's revision against this order was dismissed by the Addl. Collector but was allowed by this Court. The matter was thereafter referred to the Full Bench. It was contended, inter alia, on behalf of Ashok Kumar that no notice was given to him before setting-aside the mutation order in his favour. This contention was negatived by the Full Bench. The relevant parts from the judgment are extracted below: "23. It clearly means hear when you alter or reverse. And do not hear when not altering or reversing the ex-parte order. And setting-aside an ex-parte order is neither reversing nor altering. I will illustrate. There is a line with points A to B. There will be reversal when line is redrawn B to A and alteration is when ex-parte order directs entry of names of three heirs of deceased tenant. The subsequent order be for two heirs of a deceased tenant. This is alteration of previous order. But when ex-parte order is merely set aside, there entail neither reversal nor alteration. It means as you were, run again, it is to erase the alphabets A-B. And on my side is Mr. Justice B. L. Gulati, J. in 1972 RD 361. "when an ex-parte order has been set aside, it cannot be said that the decree has been varied or reversed. " (24) There is no parallel provision under Section 201 Land Revenue Act to Order IX Rule 14 CPC relating to a lawsuit. That is demanding in nature. No decree shall be set-aside on any such application as aforesaid unless notice thereof has been served on the opposite party. In some, hearing the side in whose favour the judgment is absolutely necessary. The conception of a law suit is not for a summary proceeding. That is one important aspect of a difference. '' From the Bar Shri B. L. Shukla drew the attention of the Bench to the fact that there are conflicting rulings of this Court on the question referred to the Bench and hence there is a need to clarify the correct legal position for the guidance of the Revenue Courts and the members of the Bar. He also handed over copies of these rulings which are discussed in this judgment.
(3.) THE decision of the Full Bench in the case of Ashok Kumar had simply endorsed the view of Sri. A. U. Khan, Member (J) in the case of Smt. Asha v. Rajrani, 1994 RD 328. A similar view was expressed by the Division Bench consisting of Sri Desh Raj Singh, Member and Sri. A. U. Khan, Member (J) in 1995 RD 215. It needs to be mentioned that all these decisions did not consider some earlier decisions of this Court (referred to later in this judgment) wherein a contrary view was taken. THEse subsequent decisions were, therefore, judgments per incuriam. A plain reading of the proviso to Section 201 shows that an order passed under Section 200 ex-parte or by default can not be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and be heard in support of it. The question now is whether setting aside or revoking an order amounts to its reversal or alternation. The dictionary meanings of 'alter', 'reverse', 'revoke' per Oxford Dictionary are as follows: Alter - Change in character, position and modify. Reverse - turn the other way round or up or inside out, invert, transpose, revoke' annul. Revoke - rescind, withdraw, cancel.;