Back
1989 Supreme(All) 518
High Court of Allahabad
B.L.Yadav, J.
Dilbagh Singh
Vs.
Deputy Director of Consolidation Bareilly
Civil Misc. Writ Petition No. 23448 of 1989
Decided On : Nov 03, 1989
Service of notice on a son is not sufficient notice to the father, who has a separate chak, unless the father has authorized the son to receive notices on his behalf.
Headnote:
CONSOLIDATION OF HOLDINGS ACT - SECTION 41, 48(1), 49 - ORDER 5 RULE 15, ORDER 9 RULE 13 CPC - SERVICE OF NOTICE - INTERPRETATION AND APPLICATION OF PROVISIONS - EFFECT ON RESTORATION APPLICATION - COURT'S ANALYSIS AND CONCLUSION.
Fact of the Case:
Petitioner challenged the order of the Deputy Director of Consolidation allowing the restoration application filed by respondent Mangali, who was a chak holder, on the ground that the service of notice on his son, Jai Singh, who had a separate chak, was not sufficient notice to the father.
Finding of the Court:
The court held that the service of notice on the son was not sufficient notice to the father, as they were different chak holders and there was no evidence that the father had authorized the son to receive notices on his behalf. The court also held that the Deputy Director of Consolidation had correctly recorded the finding that the procedure prescribed for effecting service was not followed, and that the restoration application had correctly been allowed.
Issues: 1. Whether the service of notice on the son was sufficient notice to the father, who had a separate chak? 2. Whether the Deputy Director of Consolidation had correctly recorded the finding that the procedure prescribed for effecting service was not followed?
Ratio Decidendi: 1. The court held that the service of notice on the son was not sufficient notice to the father, as they were different chak holders and there was no evidence that the father had authorized the son to receive notices on his behalf. 2. The court also held that the Deputy Director of Consolidation had correctly recorded the finding that the procedure prescribed for effecting service was not followed.
Final Decision: The petition was dismissed.
B.L.Yadav, J.
1. Present petition under Article 226 of the Constitution is directed against the order dated 27-9-1986 passed by the Deputy Director of Consolidation, respondent no. 1 allowing restoration application filed by Mangali, the respondent no. 5 chak holder no. 217 after holding that the service of notice on son, Jai Singh, respondent no. 6, who has a separate chak no. 103 would not be. taken to be sufficient notice on the father who has a separate chak no. 217.
2. Mr. Satya Prakash, learned counsel for the petitioner urged that notice was served on Jai Singh chak holder no. 103, the son of Mangali who has common interest with his father, hence service of notice on son, was service of notice on the father. The report of the process server (Annexure 4, vide page 24 of the petition) evinces that the notice has been correctly served on the son before witnesses. The father was not available hence there was no justification for restoration as in view of second proviso and third proviso added by U. P. Amendment, the respondent no. 5, (Mangali) could have known about the date fixed, just on the basis of the irregularity in summons no exparte order could be set aside. Attention was drawn particularly to the provisions of Order 5 rule 15 and order 9 rule 13 of the Code of Civil Procedure (for short the Code). It was further urged that an application was filed by the counsel for the opposite parties there, that before deciding the revision an opportunity of hearing may be given to the opposite parties. The revision was decided thereafter on 20th April, 1986 after affording Mangali, respondent, opportunity of being heard, therefore order dated 27th September, 1989 allowing restoration application is manifestly erroneous and deserves to be quashed.
Admittedly Mangali and his sons were different opposite parties in revision as well as in this petition. Mangali was chak holder number 217 whereas his son Jai Singh was chak holder no. 103. During consolidation operation concept of Joint Hindu family cannot be imported as between different chak holders unless one chak holder has authorised the other chak holder to be his representative, latter cannot represent former. As Mangali was a party to the revision notice must have been served upon him in accordance with the procedure contemplated under Rule 58 (2) of U. P. Consolidation of Holdings Rules, 1954 (for short the rules) framed under the UP CH Act (for short the Act).
3. Much emphasis was laid by the counsel on the provisions of Order 5 Rule 15 CPC and U. P. Amendment of IInd proviso to Order 9 rule 13 CPC which are set out below : Order 5 Rule 15 Civil Procedure Code
"15. Where service may be on adult member of defendant's family: Where in any suit the defendant is absent from his residence at the time when the service of summons is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and he has no agent empowered to accept service of the summons on his behalf, service may be made on any adult member of the family, whether male or female who is residing with him." State Amendment Allahabad. Add the following further proviso : "Provided also that no such decree shall be set aside merely on the ground of irregularity in the service of summons if the court is satisfied that the defendant knew, or but for his wilful conduct would have known, of the date of hearing in sufficient time to enable him to appear and answer the plaintiff's claim."
Rule 58 (2) of the Rules is set out below:
"2. In delivering a document or effecting the service of any document, notice or summons on any tenure holder or other person, the serving officer may, where the tenure holder or the person concerned (his guardian or legal representative) is not present at his residence at the time of delivery of service or, where he cannot be found after using all due and reasonable diligence or where he refuses to take the document, not
