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[Citation : RLW 2010(1) RJ 209]
(Board of Revenue for Rajasthan)
Bagtavar Singh Vs. Jabar Singh & Ors. (Dr. Hooja, C.)
DR. RAKESH HOOJA, CHAIRMAN,
R.S. AGARWAL, MEMBER
PAWAN N. CHANDRA, MEMBER
Bagtavar Singh
Versus
Jabar Singh & Ors.
Appeal/RTA/8377/2008/Jodhpur, decided on 09.09.2009
Reference answered accordingly.
There is no ambiguity of law on the question as framed by learned Division Bench of this Court as well as by our Larger Bench, still we take this opportunity to summarise the answer on this second question as follows:
(1) In an appeal under Section 96(2) CPC or under Section 223 of Sec. 224 of the R.T. Act objection regarding improper service of summons/notices can be raised before appellate Court, only if appellant has not availed the remedy of Order 9 Rule 13 or Order 43 Rule 1 CPC.
(2) If a defendant has already availed the remedy under Order 9 Rule 13 CPC to set aside an exparte decree and his application is rejected he can file appeal against the above order u/O. 43(1)(d) CPC. If this appeal is also dismissed, he can further avail filing of regular appeal subject to provisions of Limitation Act against exparte decree under the provision of Sec. 96(2) CPC or Sec. 223 or Sec. 224 of the R.T. Act as the case may be. (Para 17)
jktLFkku dk'rdkjh vf/kfu;e] 1955] /kkjk 223 ,oa 224( fl-iz-la-] /kkjk 96¼2½ & D;k ,di{kh; fMØh ds fo:) dk'rdkjh vf/kfu;e dh /kkjk 223 o 224 ds rgr vihy esa vihyh; U;k;ky; ds le{k vuqfpr rkehy lEcU/kh vH;kifr mBkbZ tk ldrh gS\ & ;fn gka rks] fdu ifjfLFkfr;ksa ds rgr\ & vfHkfu/kkZfjr & ,slh vH;kifr dsoy rHkh mBk;h tk ldrh gS tc vihykFkhZ us vkns'k 9 fu;e 13 fl-iz-la- ;k vkns'k 43 fu;e 1 fl-iz-la- ds rgr mipkj dk mi;ksx ugha fd;k x;k gks & ;fn izfroknh us ,di{kh; fMØh vikLr djus gsrq vkns'k 9 fu;e 13 fl-iz-la- ds rgr mipkj dk mi;ksx igys gh dj fy;k gks vkSj [kkfjt dj fn;k x;k gks rks og mDr vkns'k ds fo:) vkns'k 43¼1½¼?k½ fl-iz-la- ds rgr vihy nk;j dj ldrk gS & ;fn ;g vihy Hkh [kkfjt gks tkrh gS rks og /kkjk 96¼2½ fl-iz-la- ;k dk'rdkjh vf/kfu;e dh /kkjk 223 ;k 224] tks Hkh gks] ds izko/kkuksa ds rgr ,di{kh; fMØh ds fo:) ifjlhek vf/kfu;e ds izko/kkuksa ds v/;/khu fu;fer vihy nk;j dj vkxs vkSj mipkj dk mi;ksx dj ldrk gS & bl vihy esa vihykFkhZ ,slh dksbZ vH;kifr ugha mBk ldrk tks vkns'k 9 fu;e 13 fl-iz-la- ds rgr vkosnu i= ;k vkns'k 43¼1½¼?k½ fl-iz-la- ds rgr vihy esa mBk;h xbZ Fkh vkSj ;fn mBkrk gS rks vihyh; U;k;ky; ,slh vH;kifr;ksa ij fopkj ugha djsxk cfYd vU; vH;kifr;ksa ds xq.kkxq.k ij vihy fofuf'pr djsxkA rn~uqlkj jsQjsal dk tokc fn;kA ¼in la[;k 17½
Q.1 Whether objection regarding improper service can be raised before first appellate Court in the appeal under Section 96(2) of the C.P.C. against an exparte decree?
Q.2 If yes, then under what circumstances?
2. On the above reference we have heard the learned counsels for the parties Shri Virendra Singh & Shir S.P. Singh. We have also heard other learned counsels of the Bars Shri P. Gandevia, Shri Y.D. Sharma, Shri J.S. Sankhla, Shri P.S. Dashara, Shri Bhoop Singh Vishnoi, Shri L.N. Pandya, Shri Hagamilal, Miss. Poonam Mathur, Shri Pradeep Bishnoi, Shri Ajay Pal and Shri Vikas Parashar.
3. At the outset we would like to state that all the learned advocates have vehemently submitted one common argument that the questions of reference are totally misconceived and does not require any answer because firstly Sec. 96(2) C.P.C. does not apply to present case as the impugned judgment was passed in an appeal under Section 223 of Rajasthan Tenancy Act, 1955. Secondly, provision of Section 96(2) C.P.C. is clear and itself provides appeals from original decree passed exparte, and thirdly, Section 308 of R.T. Act specifically provides applicability and non applicability of C.P.C. in context of Rajasthan Tenancy Act, 1955.
4. Shri Virendra Singh, Learned counsel for the appellant relying on 2005(1) SCC 787 = AIR 2005 SC 626 Bhanu Kumar Jain vs. Archana Kumar along with 2007(1) RRT 73 : RLW 2007(1) RJ 493 (HC) Ramjeet & Others vs. The Board of Revenue and Others contended that first appellate Court cannot look into the merit of proper or improper service against an exparte decree judgment.
5. On the other hand Shri S.P. Singh, and majority of the learned counsel who addressed us also relying on Bhanu Kumar's case and Smt. Chanda & Others vs. State of Rajasthan & Others (2004(1) RRT Page 1 : RLW 2004 RJ 80 (HC)) contended that first appellate Court has powers to examine objections with regard to improper service of notices/summons in an appeal under Section 96(2) C.P.C. as well as in an appeal u/S. 223 of R.T. Act.
6. We have given our thoughtful consideration to the rival arguments made by the learned counsel and have perused the rulings cited by them.
7. In order to resolve the controversy and reach to conclusions we shall first reproduce Sec. 96 C.PC., Sec. 223 R.T. Act, Sec. 224 R.T. Act, and Sec. 208 R.T.Act which are as follows:-
Sec. 96 C.P.C.
Appeal from original decree-(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall be from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except an a question of law, from a decree in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject matter of the original suit does not exceed (ten thousand rupees.)
Section 223 of R.T. Act:
Appeals from original decree-An appeal shall lie from an original decree-
(i) to the Collector if such decree is passed by a Tehsildar, and
(ii) to the Revenue Appellate Authority) if such decree is passed by an Assistant Collector, a Sub Divisional Officer or a Collector.
Section 224of R.T. Act:
Appeals from appellate decrees- (1) An appeal shall lie to the (Revenue Appellate Authority) from a decree passed in appeal by a Collector.
(2) An appeal shall lie to the Board from a decree passed in appeal by (Revenue Appellate Authority) on any of the following grounds, namely:-
(i) the decision being contrary to law or to some usage having the force of law;
(ii) the decision having failed to determine some material issu
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