- (1.) SHRI H. D. Ujjwal These are five revision applications against the order of the Additional Commissioner Jaipur dated 14. 5. 1951 by which he accepted second appeals filed before him against an order of the Collector Sikar in five rent suits.
(2.) THE petitioner Mst. Dhapan filed suits for recovery of her share of rent from defendants, Onkarmal Ramdeo, Nanu and Chatra. Onkar is her husband's brother and the remaining three are the cultivators of the land held by the plaintiff and the defendant No. 1 has their maufi land. ,mst. Dhapan alleged that she was getting her share of the land from Onkarmal but for sometime past he had stopped giving her the share. She therefore, prayed that a decree may be passed in her favour for grant of her share of the Hansil. THE defendants did not appear in the trial court of the Tehsildar, Dantaramgarh and the Tehsildar passed ex parte decrees in all the five suits against the defendants. Against these decrees, Onkarmal filed appeal in the court of the Collector, Sikar. THE grounds taken in appeal were that the defendant was ill and the summons was not served upon him and the decree was passed ex parte on the single statement of the plaintiff Mst. Dhapan. THE decree should, therefore, be set aside. THE Collector, Sikar held that the remedy for the appellant was to apply under Order 9, rule 13 for setting aside the ex parte decree, and not by way of appeal. He has quoted 1834 Oudh in page13 1924 Rangoon page 137, where it has been held that although a person against, whom an ex parte decree has been made is entitled to appeal against it instead of resorting to the procedure prescribed by Order 9 Rule 13 yet his contentions on appeal must be limited either to the question of the law or to such arguments as arise upon the record as it stood when the ex parte decree was passed. He is not entitled to ask the appellate court to accept the appeal on grounds which could be urged in an application under Order 9 Rule 13 and remand the suit for rehearing. THE Collector held that as no -question of law was raised before him nor any argument had been raised on the basis of the' materials on record how the decree could not stand, the remedy of the appellant, therefore, was to file an application under Order 9 Rule 13 for setting aside the ex parte decree and not an appeal. He, therefore, dismissed the appeals. Against this order the appellant filed second appeal before the Additional Commissioner Jaipur who accepted the appeals and remanded the cases to the trial court with the direction that the plaintiff may be permitted to amend the suit if she chooses to do so and then to dispose of the case according to law. The reason for remanding the cases given by the Additional Commissioner was that the land was a Bhog grant and there were four co-sharers and out of them plaintiff's share was only one-fourth. The other co-sharers had not been brought on record. Further that the Collector, Sikar should have decided the appeals on merits. It is against this order of the Additional Commissioner that these revision applications have been filed. It is contended by the counsel for the plaintiff petitioner that in the memorandum of appeal filed before the Collector, Sikar the defendant had admitted that the plaintiff's husband and the defendant Onkarmal were real brothers and that Onkarmal was taking the whole share of the rent of the two brothers. The only ground taken in appeal by the defendant Onkarmal why the plaintiff was not entitled to her share of the rent was that, the plaintiff had gone to live in illegitimate intimacy with another person and she was, therefore, not entitled to get her share of the rent. The other point raised was that the appellant was ill at the time the exparte decree was passed and did not get any information about the filing of the suit. No other ground, regarding the non-joinder of the other co-sharers or about the material on record being insufficient to support the decree passed by the trial court had been raised. The facts had been admitted bythe defendant and the further ground raised was about the bad character of the plaintiff which could only be raised in written statement after the ex parte decree had been set aside. Similarly the ground of non-service of summons could be raised only in an application for setting aside the exparte decree under Order 9 Rule 13. No other ground was raised in the second appeal filed by Onkarmal. The Additional Commissioner had, therefore, acted with material irregularity in taking into consideration grounds not raised by the appellant either in the appeal or in the second appeal. The order of remand passed was, therefore, without jurisdiction. I have gone through the ruling cited by the learned Collector and also. A I. R. 1917, Allahabad, 475 cited by the counsel for the petitioner. In A. I. R. 1924 Rangoon 137 it has been held that in an appeal from an ex parte decree the only question with which the appellate court is ordinarily concerned is whether the evidence on the record is sufficient to support that decree and that the question of due service of summons is the subject matter not of an appeal from the decree but of the special proceeding under order. The counsel for the non-petitioner has not been able to show any ruling to the contrary. Thus although an appeal can legally be filed against an ex parte decree, the grounds to be considered in it are different from those which are to be taken in an application under order 9 Rule 13. The question of non-service of summons can only be taken in an application under Order 9 Rule 13 for setting aside of ex parte decree and grounds which go to show that the decree is not warranted on the basis of material on record can be taken in an appeal against an ex parte decree. The order of the learned Collector therefore, in rejecting the first appeal was correct and the order of the learned Additional Commissioner in accepting the second appeals against the order of the Collector is not supported by law on the point. Where an order passed by an appellate authority is not in consonance with law, it can be interfered within revision. I would, therefore, with the concurrence of my learned colleague, accept all the five revision applications filed against the same order of the Additional Commissioner and set aside his order remanding the cases and restore that of the Collector. K. S. Ranawat - I concur. . ;