BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THE Suit No. 192/87 was filed in the court of Assistant Collector, Jodhpur by Mangilal and Oma Ram respondents No. 6 & 7 in this petition against Jawana Ram son of Simratha Ram, Shivia, Khema Ram sons of Deda Ram, Kewal Ram son of Simratha Ram and the State of Rajasthan. A written statement is purported to have been filed only on behalf of defendants No. 1 & 3 admitting the claim of the plaintiff. Petitioner No. 2 Khema Ram has denied to have filed any written statement by himself or by any other person authorised on his behalf because according to the petitioners notice of the suit was not, in fact, served on them. Be that, as it may, vide its judgment dated 15. 5. 89, the Assistant Collector, taking note of the fact of the written-statement having been filed only by two of the defendants and the absence of written-statement on behalf of other defendants, dismissed the suit filed by the plaintiffs. No appeal against the said dismissal of the suit was filed until 2. 7. 91 by the plaintiffs. As the appeal was filed more than two years after passing of the decree, the plaintiffs also moved an application under Section 5 of the Limitation Act. By the order dated 30. 08. 1991, the Revenue Appellate Authority found that no sufficient cause has been disclosed by the plaintiffs appellants, which prevented them from filing the appeal within time and rejected the application under Section 5 of the Limitation Act and also dismissed the appeal. THE petitioners had not appeared at that stage in the proceedings before the Revenue Appellate Authority. However, the plaintiffs moved an application for review of the order dated 30. 08. 1991, which came to be allowed by order dated 2. 12. 92 without issuing notice to the present petitioners. Aggrieved with the order dated 2. 12. 92, the petitioners preferred a revision petition No. 96/93 before the Board of Revenue. Before the revision could be decided, the Revenue Appellate Authority allowed the appeal filed by the plaintiffs on 30. 01. 1993 and decreed the suit of the plaintiffs by assuming that the written-statement has been filed by all the defendants admitting the claim of the plaintiffs. That was an apparent mistake on the part of the Revenue Appellate Authority in as much as it has been clearly mentioned in the order dated 15. 5. 89 that the written-statement has been filed only on behalf of the defendants No. 1 & 3 and no written-statement has been filed on behalf of the defendants No. 2, 4 & 5. THE present petitioners had preferred an appeal before the Board of Revenue against the judgment & decree dated 30. 01. 1993 in which the grounds challenging the order dated 2. 12. 92 were also taken. It is in the aforesaid circumstances that when the revision came up for hearing before the Board of Revenue on 6. 9. 94, the Board of Revenue taking note of the fact that subsequent to the passing of order dated 2. 12. 92, the appeal itself has been allowed by the Revenue Appellate Authority on 30. 01. 1993 and against the said judgment and decree the present petitioners have also preferred another appeal, dismissed the revision No. 96/93 as having become infructuous. THEreafter, when the appeal filed by the present petitioners came up for hearing before the Board challenging the order dated 2. 12. 92, it was argued by the learned counsel for the petitioners that the review petition has been allowed without issuing notice to them and it was also argued that the contention of the petitioners that after the review application was allowed on 2. 12. 92 and the order dated 30. 08. 1991 was set aside, the appeal was registered after condoning delay, notice of hearing of appeal was also not issued by the Revenue Appellate Authority and without hearing them, the same was allowed. However, keeping in view the fact that the present petitioners have not appeared before the Revenue Appellate Authority inspite of service when the order dated 30. 08. 1991 was passed and that a revision against that order has been dismissed as having been become infructuous the Board did not grant any relief to the petitioners against the order allowing the review application but set aside the judgment and decree dated 30. 01. 1993 and remanded the case back to the Revenue Appellate Authority to decide the appeal de novo after affording opportunity to the petitioners in accordance with law. Aggrieved with the aforesaid orders of the Board of Revenue dated 24. 06. 1997 and 2. 12. 92, the present petition has been filed for quashing the judgment of the Board of Revenue dated 24. 6. 97 to the extent it upholds the order dated 2. 12. 92. The petitioners also prayed for quashing the order dated 2. 12. 92 allowing the review application filed by the plaintiffs respondents No. 7 & 8 on the ground that review application for the purpose of recalling the order dated 30. 1. 91 has been allowed without issuing notice to the petitioners and without giving them opportunity of hearing, which affects the vested right in them to the finality of the decree which accrued to them as a result of not filing any appeal within limitation by the plaintiffs. Mr. J. R. Beniwal, learned counsel appearing for the contesting respondents appellants, urged firstly that because of the order passed by the Board of Revenue dated 6. 4. 94, which has not been challenged by way of separate writ petition, the petitioners are not entitled to get any relief as the question of allowance of review application has become final. It was also contended by the learned counsel that since the petitioners have allowed the order dated 30. 08. 1991 to be passed ex parte inspite of they having been served with the notice, therefore, they could not be treated as an opposite party for the purpose of review application to whom notice was required to be issued before it was heard and decided. In this connection, the learned counsel relied on a decision of the Lahore High Court in Gandu and Others vs. Mt. Nasibo and Others (1 ). Having given my thoughtful consideration, I am of the opinion that this petition merits acceptance. In the first place, in the facts and circumstances of the present case, the order dated 6. 09. 1994 dismissing the revision application filed by the petitioners against the order dated 2. 12. 92 as having become infructuous because a final order after allowance of the review application has come into existence and appeal against that order has been filed by the very same parties the Board of Revenue thought it not necessary to go into merits of the case at that stage. Obviously, the judgment dated 6. 9. 94 by the Board of Revenue has not determined any rights or question that arose between the parties about the validity of the order dated 2. 12. 92. In this connection, it would be appropriate to consider the scheme of procedure followed for review of an order passed by the revenue courts to which according to the learned counsel for the parties the provisions of Civil Procedure Code apply. Order 47 C. P. C. governs the procedure for considering review of any order passed by a court. It firstly envisages two stages of the proceedings. First stage is that on making an application by a person for review of a decree or order whether review application is to be granted once that part is considered and the court if decides to allow the review application then simultaneously fresh order on merit is not passed but the procedure adopted is that review is allowed and the existing order is set at naught and the hearing of the matter pending before the court takes place afresh on merits. These two are considered to be independent proceedings. It is also apparent from the order dated 24. 06. 1997 where the Board has bifurcated the two proceedings, one culminated into allowing the review application on 2. 12. 92 and another resulted in allowing the appeal after the review was allowed on 2. 12. 92 on merits and finding that after the review was allowed and the order dated 30. 08. 1991 was set aside, which was sought to be reviewed, no notice of next date of hearing was given to the petitioners which vitiated the further proceedings and for that reason the judgment and decree dated 30. 01. 1993 has been set aside. However, the same principle has not been applied to the order dated 2. 12. 92 for the aforesaid two reasons. This brings to the force the scope of challenging the order allowing the review application by way of an appeal, which is governed by provision of Order 47 Rule 7, which reads as under:- " R. 7. Order of rejection not appealable. Objections to order granting application; (1) An order of the Court rejecting the application shall not be appealable but an order granting an application may be objected to at once by an appeal from the order granting the application or in an appeal from the decree or order finally passed or made in the suit. 2 . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . " It is obvious from the perusal of the aforesaid provision and perusal of Sub-rule (1) of Rule 7 makes it abundantly clear that order of granting an application for review is independently appealable without waiting for the final orders passed in the suit after granting of application for review. But the said order can also be challenged in an appeal against the decree or order that may be finally passed after grant of review application. Therefore, a party has opportunity either to challenge the order by way of separate appeal against the order granting review or by raising the grounds of invalidity of order granting review application in his appeal against the order or decree which may be finally passed in those proceedings. In the present case the petitioners at the first instance had challenged the order granting review by filing an appeal, which was treated as revision by the Board of Revenue. Before that revision could be heard and decided, the proceedings before the Revenue Appellate Authority, in which review was granted, terminated against the petitioners. Against the said decree also the petitioners filed an appeal exercising their right to challenge the order granting review application by raising ground thereto in their memo of appeal. As on the date appeal was preferred, the revision had not been decided and the appellants were free to take grounds for challenging the order granting review application. They were not precluded to raise those grounds in their memo of appeal. In these circumstances when either of option was available to the petitioners to carry on one or other proceedings for challenging the order granting the application for review, the Board of Revenue decided not to consider the independent revision on merit against the order granting application for review treating it as having been become infructuous because proceedings before lower appellate court has terminated and appeal against final order was pending, it cannot be held against the petitioner. To fore-close his right to press for all grounds of appeal raised by him (including grounds to challenge grant of review) against the decree in appeal, which was pending before the Board of Revenue because of the alternative remedy available will be highly unjust & contrary to fair procedure because the Board of Revenue has decided not to consider one of the remedy chosen by him and left him to pursue his right, which he has already invoked before the order dated 6. 4. 94 was made. In these circumstances, I am of the opinion that the principle of res judicata had no application to the facts and circumstances of the case so as to debar the petitioners from raising grounds against the invalidity in granting of review application filed by the respondents in their appeal before Revenue Appellate Authority. The Board of Revenue was apparently not right in rejecting those grounds on the ground of dismissal of revision as having become infructuous. This petition is, therefore, in my opinion is not unsustainable and the petitioners cannot be non-suited on that ground.
(3.) THE other ground, which has been raised by the learned counsel and which also found favour with the Board of Revenue because the petitioners had remained absent at the time when the order dated 30. 08. 1991, which was sought to be reviewed was passed, they are not entitled to any notice of the review is equally unsustainable. Order 41 Rule 4 C. P. C. is emphatic and clear in its terms when it prohibits any court from granting any application for review without previous notice to the opposite party to enable him to appear and to be heard in respect of the decree and order. This is a mandatory requirement and even in the absence of such provision, an order could not have been passed by any court without notice to the affected party. An adequate opportunity of hearing before making any order adverse to a party is the basic norm in a fair procedure required to be adopted by any court or adjudicating Tribunal. It is not in dispute that no notice of this application was given to the petitioners against whom the plaintiff respondents were seeking a decree by way of declaration of their joint Khatedari rights and partition thereof and thereafter seeking necessary correction in the revenue record on that basis. THE fact that while order dated 30. 08. 1991 was passed rejecting the application under Section 5 Limitation Act, is of little consequence as the said order was made in favour of the present petitioners and the order was not liable to be reviewed by the court unless conditions for reviewing the order were made out by the other party seeking review of the order. Whether such grounds for granting review are made out or not, they had nothing to do with the merits of the application under Section 5 of the Limitation Act. Those grounds, which had to be raised independently in the exercise of the discretion of the court for considering the application under Section 5 Limitation, were levelled for the first time in the application for review. THErefore, there is no reason to countenance the contention raised by the learned counsel for the respondents that because the earlier order was allowed to be passed ex party in favour of them, they were not entitled to a notice and opportunity of hearing when those orders in their favour were sought to be reviewed thereafter at their instance. THE procedure adopted by Revenue Appellate Authority was apparently contrary to Order 41 Rule 4 as well against basic principles of natural justice. Reliance placed in this connection on Lahore case is not well founded. That was a case in which the persons who were not served with the notice of the review application were proforma defendants and their interest was co-extensive with the plaintiffs as reversioners in a suit filed by some of the reversioners challenging the alienation made by limited estate holders. Thus the plaintiff had acted for the body of all the reversioners and the interest of the plaintiff and proforma defendants was coextensive. It is in the aforesaid circumstances that the court found that `in a suit by some reversioners for setting aside an alienation, a certain reversioner was made a pro forma defendant in the suit. . . . . His interest was sufficiently guarded by one of the plaintiffs reversioners. . . On appeal by the plaintiff against the order granting review, to which the pro forma defendant joined as appellants, it was contended by the pro forma defendant that no notice was given to them. THE court held that the pro forma defendant under such circumstances could not fall within the meaning of `opposite party' in Order 47 Rule 4 (2) (a) and therefore before granting of the review application notice was not necessary. " THE decision is not founded on the basis that because the party has remained ex parte, it is not entitled to notice, but on consideration of the facts, the party of the case who was only a pro-forma defendant was considered not to be an opposite party to whom notice was required to be served. Apart from the aforesaid technicalities the petitioners have independetly challenged the order dated 2. 12. 92 allowing review application for revoking the order dated 30. 08. 1991 inter alia on the ground that no notice before granting review application has been issued and that vital interest in as much as by the aforesaid order, they have been deprived of a right vested in them by treating the decree passed by the trial court on 15. 5. 89 has become final between the parties. In the peculiar facts and circumstances of the present case when a revision against the order dated 2. 12. 92 which was promptly filed by the petitioners was dismissed as having become infructuous in view of their appeal raising the very same grounds was pending before the Board of Revenue and the Board of Revenue thought itself bound by its earlier decision dated 6. 9. 94, this Court being a superior court to the Board of Revenue and the proceedings arising out of the same proceedings from the same stage, the jurisdiction and discretion of this Court in the present proceedings will not be inhibited because of the erroneous order passed by the Board of Revenue on 6. 9. 94 by treating the revision to be infructuous without considering it on merits. The petitioners would be entitled to the relief on that ground if necessary by quashing the orders dated 6. 9. 94 and 2. 12. 92 independent of the order dated 24. 6. 97. As a result of the above discussion, this petition is allowed. The order dated 2. 12. 92, allowing the review application filed by the plaintiff-respondents before the Revenue Appellate Authority, is quashed and the Revenue Appellate Authority is directed to decide the review application filed by the plaintiff respondents afresh in accordance with law after giving opportunity to both the parties before proceeding with the appeal on merits. ;