Rules of procedure are the handmaid of justice. Language used by the draftsman, while enacting processual law, may be liberal or stringent, but the object of every procedural law has to be to advance the cause of justice. In an adversarial system, procedural law needs to be interpreted in a manner that no party should ordinarily be denied the opportunity of participating in the process of dispensation of justice, unless of course, compelling expressions used in the languages forces the court to adopt a contrary course. In Sushil Kumar Sen Vs. State of Bihar, (1975) 1 SCC 774 humanist approach to act ex-debito justicae was emphasised.
33. No person has a vested right in any course of procedure. Procedural laws are not ordinarily construed as mandatory. Any interpretation which eludes or frustrates the recipients of justice is not to be followed. (See Shreenath Vs. Rajesh & Ors, AIR 1998 SC 1827).1
IN THE HIGH COURT OF DELHI AT NEW DELHI
SUBJECT: SECTION 85 OF DELHI LAND REFORMS ACT,1954
DATE OF DECISION: 19-01-2006
WP(C) 20087/2004
Shri Het Ram & Anr.
VERSUS
Shri Ram Singh & Anr. .
PRADEEP NANDRAJOG, J.
1. Respondent No.1 was the recorded bhoomidar of lands bearing Rect.No.13 Kila No.24 (3-0), 25(4-16), Rect.No.14 Kila No.21(4-16), Rect.No.26 Kila No.3(2-9), 4(4-16), 5(4-16), 6(4-16) and 7(4-16) of Village Kulakpur, Delhi.
2. Claiming to be in adverse cultivatory possession for a period of 3 continuous years prior to 23.3.1990, petitioner filed a petition under Section 85 of Delhi Land Reforms Act,1954 praying that since the period within which the respondent No.1 could eject him from the land had expired, petitioner was entitled to be declared as bhoomidar of the land in question.
3. After attempting to serve the respondent by ordinary process and registered post and on noticing that service could not be effected, Revenue Assistant directed service of the respondent by publication. After publication was effected, vide order dated 21.8.1990, respondent was proceeded ex-parte.
4. Petitioner led ex-parte evidence. Vide order dated 25.9.1990, Revenue Assistant declared the petitioner to be the bhoomidar of the land in question.
5. On 28.12.1994, respondent No.1 moved an application under Appexdix VI Para 14 of Delhi Land Reforms Act,1954 stating that he was wrongly proceeded ex-parte. That he came to know of the order dated 215.9.1991 declaring the petitioner to be the bhoomidar on 22.12.1994 when he received a copy of the khata khatoni.
6. Revenue Assistant, vide order dated 22.10.1999, rejected the application holding it to be not maintainable. He held that remedy of respondent No.1 was to challenge the order by way of appeal.
7. Accordingly, respondent No.1 filed an appeal against the order dated 25.9.1991. In the said appeal, order dated 22.10.1999 was also questioned.
8. Vide order dated 6.10.2004, appeal was allowed. Order dated 25.9.1991 and 22.10.1999 were set aside.
9. Learned appellate Court held that the order of publication followed only one attempt to serve notice upon the respondent, which attempt failed, that was not enough to record a finding that the respondent No.1 could not be served by ordinary process. It was accordingly held that the order directing service by publication was faulty. Consequence was that it was held the order proceeding ex-parte against respondent No.1 had to be set aside. Accordingly, the ex-parte decree was set aside.
10. Petitioner preferred revision petition against the order dated 6.10.2004 passed in the appeal filed by respondent No.1.
11. Learned Financial Commissioner dismissed the revision petition being case No.292/04-CA, vide his order dated 18.11.2004.
12. Petition challenges the order dated 18.11.2004 passed by the learned Financial Commissioner as also the order dated 6.10.2004 passed by the First Appellate Court.
13. Learned counsel for the petitioner urged that the respondent No.1 was aware of the entire proceedings. Counsel urged that the fact that respondent No.1 was aware of the proceedings and the order dated 25.9.1991 was evidenced from the fact that on 31.3.1992, much after order dated 25.9.1991 was passed, respondent No.1 sold his remaining land comprised in Khasra No.13/16 (4-16) in Village Kulakpur to one Jeet Ram. That after executing the sale deeds, mutation was effected in the name of Jeet Ram. That for submitting the mutation application, certified copy of the khata khatoni was appended with the application. The said khata khatoni issued to respondent No.1 recorded the fact that vide order dated 25.9.1991 petitioner was declared as the bhoomidar of the lands in question.
14. Additionally counsel urged that one Tara Chand had likewise instituted proceedings against the respondent in respect of land comprised in khasra No.13/13 (3-9) Village Kulakpur. In the said proceedings, even Tara Chand claimed to be in adverse cultivatory possession. He sought declaration of bhoomidari rights in his favour. The said application was decided along with petitioner's claim vide common order dated 25.9.1991.
15. Counsel urged that conduct of respondent No.1 was unexplainable as he did not seek any orders against Tara Chand nor did he seek recall of the declaration granted in favour of Tara Chand.
16. Copy of khata khatoni (Annexure P-1) has been obtained by petitioner on 20.1.2003. It does record mutation in favour of petitioner pursuant to the order dated 25.9.1991. It also records a mutation entry in favour of Tara Chand. It also records a mutation entry in favour of Ram Singh to whom certain lands were sold.
17. But that would not mean that mutation entry in the khata khatoni pertaining to the order dated 25.9.1991 was recorded at the time when respondent No.1 or Ram Singh obtained copy of khata khatoni when pursuant to the sale deed the two applied for mutation in the name of Ram Singh.
18. That apart, there is intrinsic evidence which suggest to the contrary.
19. As noted above, application filed by the petitioner under Section 85 and the application filed by Tara Chand against respondent No.1 were decided by a common order dated 25.9.1991 (Annexure P-2).
20. Entries in khata khatoni record the first mutation in favour of the petitioner. Second is the mutation in favour of Ram Singh pursuant to the sale deed and consequent order passed by Naib Tehnsildar on 13.3.1992. Third entry pertains to the order Annexure P-1 passed by the Revenue Assistant in favour of Tara Chand.
21. Entries in khata khatoni do not reflect a contemporaneous recording in the khata khatoni and the orders passed in favour of petitioner and Tara Chand. On the contrary, as noted above, order passed in favour of the petitioner and Tara Chand stand recorded at serial No.1 and 3 respectively. Inter spaced between, is the order passed pursuant to the sale deed executed by respondent No.1 in favour of Ram Singh.
22. That the principle ground of challenge urged by the petitioner falling, only other issue which requires to be decided is whether the First Appellate Court was justified in setting aside the order dated 25.9.1991declaring the petitioner to be the bhoomidar of the lands in question and the order dated 22.10.1999 passed by the learned Revenue Assistant.
23. As regards order dated 22.10.1999, order reads as under :
"Case called. Present petitioner with counsel. Also present Mahipal, GPA of respondent. The case has been decreed on 25.9.1991 after substituted service on respondent. So the remedy for respondent lies in appeal and not in application under Appendix VI Para 14 of Delhi Land Reforms Act,1954. Application under these proceedings is dismissed."
24. Para 14 of Appendix VI of Delhi Land Reforms Act,1954 reads as under :
"14. No appeal from orders passed ex-parte or by default. Rehearing on proof of good cause for non-appearance- No appeal shall lie from an order passed under paragraph 13 ex-parte or by default.
By in all such cases, if the party against whom judgment has been given appears either in person or by agent (if a plaintiff, within 15 days from th date of such order, and if a defendant within 15 days after such order has been communicated to him, or after any process for enforcing the judgment has been executed or at any earlier period), and shows good cause for his non-appearance, and satisfies the officer making the order that there has been a failure of justice, such officer may, upon such officer may, upon such terms as to costs or otherwise as he thinks proper, revive the case and alter or rescind the order according to the justice of the case.
Provided that no such order shall be reversed or altered without previously summoning the party in whose favour judgment has been given to appear and he heard in support of it."
25. I see no reason as to how the application of respondent no.1 seeking recall of the ex-parte order was not maintainable under Para 14 of Appendix VI of Delhi Land Reforms Act,1954.
26. That apart, where a person alleges that he was not served, it is not a case of showing good cause for non-appearance on the date fixed for hearing in strict sense of the letter of law, for the reason a person who is not served would have no occasion at all to appear at the hearing.
27. That apart, learned Appellate Court was fully justified in holding that the order proceeding ex-parte against respondent No.1 was vitiated in law for the reason, he was served by publication after only one attempt was made to serve him by ordinary process.
28. Record of the Revenue Assistant shows that petitioner's petition was presented on 26.4.1990. Notices were directed to be issued to the respondent for 22.5.1990 by registered post. There is not record to show that the petitioner filed the registered covers. On 22.5.1990 fresh notice was directed to be issued to the respondent returnable for 5.7.1990. This notice could not be served. On 5.7.1990, fresh notice was directed to be issued to respondent No.1 returnable for 8.8.1990. Petitioner did not comply with the order dated 5.7.1990 and moved an application under Order 5 Rule 20. On 23.7.1990 this application was allowed and substituted service was ordered.
29. Record shows that only one attempt was made to serve respondent No.1 which failed.
30. There is yet another aspect of the matter. Proceedings under Article 226 of the Constitution of India are discretionery remedy. Justice has to play an important role in the administration of law.
31. Consequence of the impugned orders is that proceedings under Section 85 of Delhi Land Reforms Act,1954 stands revived. If petitioner succeeds in the writ petition, he gets benefit of an ex-parte decree. Valuable rights of respondent No.1 are involved. As noted above, total holding which is subject matter of the dispute between the parties admeasures over 30 bighas of land. Every person must get a fair opportunity to defend his property. As far as possible, law needs to be interpreted in a manner where fair opportunity of defence is available to the parties.
32. Rules of procedure are the handmaid of justice. Language used by the draftsman, while enacting processual law, may be liberal or stringent, but the object of every procedural law has to be to advance the cause of justice. In an adversarial system, procedural law needs to be interpreted in a manner that no party should ordinarily be denied the opportunity of participating in the process of dispensation of justice, unless of course, compelling expressions used in the languages forces the court to adopt a contrary course. In Sushil Kumar Sen Vs. State of Bihar, (1975) 1 SCC 774 humanist approach to act ex-debito justicae was emphasised.
33. No person has a vested right in any course of procedure. Procedural laws are not ordinarily construed as mandatory. Any interpretation which eludes or frustrates the recipients of justice is not to be followed. (See Shreenath Vs. Rajesh & Ors, AIR 1998 SC 1827).
34. Latest in the series is the judgment of the Supreme Court reported as 2005 AIR SCW 6031, Shaikh Salim Haji Abdul Khaymsab Vs. Kumar & Ors.
35. The writ petition is accordingly dismissed.
36. Since proceedings initiated by the petitioner under Section 85 stands revived and taking note of the fact that proceedings were filed in the year 1990, directions are issued to the Revenue Assistant to decide the matter as expeditiously as possible and preferably within one year.
37. No costs.
January 19, 2006 PRADEEP NANDRAJOG,J
No comments:
Post a Comment