Saxena, J. - (1.) -Defendant petitioner by filing these writ petitions has prayed that orders of the Board of Revenue dated 1.1.1996 (Ann. 5) and dated 7.2.1996 (Ann. 6), the order dated 7.2,1996 (Ann. 11} passed by the Assistant Collector, Chomu (District Jaipur) respondent No. 2, as also subsequent proceedings in the revenue suits Nos. 451/1984 and 452/1984, taken in his absence be quashed and set aside.
(2.) The admitted skeletal facts necessary for the disposal of these writ petitions are that on 3.2.84, respondent Chhitar filed aforementioned two suits in court of Asstt. Collector, Chomu for correction of entries in the record of rights under the Rajasthan Tenancy Act in respect of the disputed agriculture lands against his brothers viz Raghuvar (petitioner) & Prabhu with the averments that the disputed land was given to him for cultivation by the then Thikana Chomu, that he was in exclusive cultivatory possession thereof and paying the land revenue and that the names of Raghuvar and Prabhu were wrongly entered as co-sharers in the record of rights. On 30.6.1984 a consent written statement was filed on behalf of petitioner Raghuvar. On 4.6.1985 the petitioner was not present, hence order for proceeding ex parte against him was passed by the Assistant Collector. The petitioner on 13.9.1985 filed an application under Order 9 Rule 7 CPC for setting aside the ex parte proceedings drawn against him, which was dismissed on 30.4 1988 Thereafter the petitioner filed an application dated 7.5.1988 under Order 6 Rule 17 CPC for amendment of the written statement, which was dismissed on 3 12.1988 as not pressed. However, on the same day, the petitioner filed yet another application under Order 6, Rule 17, CPC read with Section 151, CPC for amendment in his written statement. Co- defendant Prabhu expired during the trial. Hence Mohan, respondent No. 4 was impleaded as his legal representative vide order dated 30.1.1991. After hearing parties the Assistant Collector by his order dated 17.7.1991 (Ann. 2) allowed petitioner's application for amendment subject to a cost of Rs. 1100/-. On 31.7 1991, the amendment written statement was filed by the petitioner, however,, the counsel for the plaintiff (Chhitar) refused to accept the costs Chhitar thereafter filed a revision petition against the order Annx. 2 before the Board of Revenue for Rajasthan, which was ultimately dismissed by the Board by its order dated 1.1.1996 (Ann. 5) on the sole ground that as the order for proceeding ex parte against the petitioner had become final, he ceased to be a party in the suit and since he was a nonexistent party to the suit, he could not get any relief under Order 6, Rule 17, CPC. The Board further observed that if the petitioner wanted to amend his pleadings, it was sine qua non for htm to get himself impleaded as party in the suit The Board, therefore, did not decide the petitioner's application under Order 6, Rule 17, CPC on merits. Petitioner's review petition against the said order Annex 5 was also dismissed by the Board vide its order dated 7.2.1996 (Ann. 6). Hence this writ petition.
(3.) I have heard the learned counsel for the parties at length and carefully perused the relevant record in extenso. Order 9, Rule 7 CPC lays down that where the defendant appears on the day of adjourned hearing and assigns good cause for his non-appearance and then the court may on such costs or otherwise set aside ex parte order and the defendant may be heard in answer to the'suit;