Improper service of notice leading to ex parte proceedings violates natural justice; an appeal can challenge such decrees on merits under statutory rights regardless of procedural lapses.

JUDGMENT :

ANOOP KUMAR DHAND, J.

For convenience of exposition, this order is divided in the following parts: -

INDEX

(1) The Challenge

(2) Submissions by the petitioner

(3) Submissions by the respondents

(4) Analysis, Discussions and Findings

(5) Conclusion and Direction

The Challenge:-

1. By way of filing this writ petition, a challenge has been led to the impugned judgment and decree dated 21.07.2004 passed by the Revenue Appellate Authority (for short, ‘the RAA’) by which the appeal filed by the petitioner against the ex-parte judgment and decree dated 09.05.2002 passed by the Assistant Collector, Bayana has been rejected, and the aforesaid ex-parte judgment and decree has been upheld.

2. Aggrieved by the judgment dated 21.07.2004 passed by the RAA, the petitioner submitted a second appeal under Section 224 of the RAJASTHAN TENANCY ACT , 1955 (for short, ‘the Act of 1955’) before the Board of Revenue (for short, ‘the Board’), however, the same was also rejected vide impugned judgment and decree dated 22.09.2020.

Submissions by the Petitioner:-

3. Counsel for the petitioner submits that a suit for declaration and permanent injunction under Sections 88 -89 and 188 of the Act of 1955 was submitted by the respondent-plaintiff (hereinafter referred to as “respondent”) against the petitioner-defendant (hereinafter referred to as the “petitioner”) before the Assistant Collector, wherein after service, the petitioner submitted a written statement. Counsel submits that the suit was dismissed in default on 19.07.1999 for non-appearance of the respondent. However, the said suit was restored back on 22.12.1999. Counsel submits that once again the suit was dismissed on 30.03.2000 for non- payment of cost and failure to produce any evidence by the respondent. Counsel submits that an appeal was preferred by the respondent, against the order dated 30.03.2000 before the RAA. Counsel submits that the RAA vide its order dated 23.11.2001 quashed and set aside the order dated 30.03.2000 passed by the Assistant Collector and remanded the matter back to the Assistant Collector for deciding the suit on its merit, after providing due opportunity of hearing to the parties. Counsel submits that after the matter was remanded by the RAA, notices were issued to the petitioner. However, the notices were allegedly affixed at the conspicuous place of his house, however, the Process Server did not obtain signature of any witness, who identified the house of the petitioner. Consequently, there was no compliance of the provisions contained under Order 5 Rule 17 CPC. Subsequently, on 08.04.2002, the Assistant Collector initiated ex-parte proceedings and allowed the suit for declaration and permanent injunction vide the impugned judgment and decree dated 09.05.2002. Counsel submits that the petitioner submitted an appeal under Section 96(2) CPC before the RAA to set aside the ex-parte decree and to remand the matter to the Assistant Collector for fresh adjudication of the suit, after affording due opportunity of hearing to the parties. However, the said appeal was rejected vide order dated 21.07.2004 both on merit as well as on technical count. Counsel submits that the technical count on which the appeal submitted by the petitioner was rejected was that, after remand of the matter by the RAA vide order dated 23.11.2001, the petitioner neither submitted any written statement nor any issues were framed. Hence, the order passed by the Assistant Collector was upheld. Counsel submits that against the aforesaid judgment and decree dated 21.07.2004, the p