Isabella Mariam

The High Court of Rajasthan Single Bench of Justice Anoop Kumar Dhand quashed an ex-parte judgment and two appellate orders that upheld it, directing the Assistant Collector to re-adjudicate the suit afresh. The Court held that the petitioner had not been properly served with notice, and consequently, the ex-parte decree violated principles of natural justice. The matter has now been remitted to the trial court for fresh consideration on merits after providing both parties due opportunity to present their case. The Court has also issued a direction for expeditious disposal of the matter, preferably within two years.

A writ petition was filed by an 81-year-old petitioner challenging three judicial orders: an ex-parte judgment and decree dated 09.05.2002 by the Assistant Collector, Bayana; the appellate judgment dated 21.07.2004 by the Revenue Appellate Authority (RAA); and the second appellate order dated 22.09.2020 by the Board of Revenue.

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The dispute arose from a suit for declaration and permanent injunction filed by the respondent under Sections 88-89 and 188 of the Rajasthan Tenancy Act, 1955. Initially, the petitioner appeared and submitted a written statement. However, the suit was dismissed in default on 19.07.1999 due to the respondent's non-appearance. The suit was restored on 22.12.1999. It was once again dismissed on 30.03.2000 due to the respondent's failure to pay costs and produce evidence.

The respondent challenged this second dismissal before the RAA, which on 23.11.2001, quashed the dismissal and remanded the matter to the Assistant Collector for decision on merits. The RAA directed that the matter be adjudicated afresh after giving due hearing to both sides.

Upon remand, the Assistant Collector issued notices to the petitioner. According to the petitioner's counsel, the notices were affixed on the petitioner’s house without proper procedure. Specifically, the Process Server allegedly failed to obtain a witness signature verifying the residence, which is a mandatory requirement under Order 5 Rule 17 of the Civil Procedure Code (CPC). Consequently, on 08.04.2002, the trial court proceeded ex-parte and passed a judgment and decree on 09.05.2002.

The petitioner challenged this decree under Section 96(2) CPC before the RAA, seeking to set aside the ex-parte judgment and remand the matter to the trial court. However, the RAA rejected the appeal on 21.07.2004 both on merits and on a technical ground that the petitioner had not submitted a written statement post-remand, and no issues had been framed.

Subsequently, the petitioner filed a second appeal before the Board of Revenue, which was also dismissed via order dated 22.09.2020. The Board upheld the earlier judgements, stating that the petitioner had not challenged the ex-parte judgment on merits and therefore, the appeal under Section 96(2) CPC was not maintainable.

Aggrieved by these judgements, the petitioner filed the present writ petition before the Rajasthan High Court. The petitioner contended that the right, title, and interest at stake required full adjudication by the trial court and that the ex-parte decree was passed without due service of summons. It was argued that the affixation procedure lacked the mandatory witness verification under Order 5 Rule 17 CPC, rendering the service invalid.

In response, the respondents argued that the petitioner had not assailed the ex-parte judgment on its merits and sought only a remand. Citing the Supreme Court judgment in N. Mohan Vs. R. Madhu (AIR 2020 SC 41), they contended that appeals under Section 96(2) CPC are maintainable only if the merits of the decree are challenged. Therefore, they argued that both the RAA and the Board were correct in rejecting the appeals.

The Court made extensive legal and factual observations. It noted, "When an ex-parte decree is passed, the defendant has two remedies – (a) Either to file an application under Order 9 Rule 13 CPC... (b) to file a regular appeal from the original decree to the first appellate court in terms of Section 96(2) CPC and challenge the ex-parte decree on merits."

It recorded, "Right to appeal under Section 96(2) CPC... is a substantive right... the defendant cannot be deprived of the statutory right merely on the ground that he did not file any application under Order 9 Rule 13 CPC."

The Court reviewed the entire procedural history and noted, "This fact is not in dispute that after service of summons, the petitioner submitted written statement... However, the said suit was dismissed in default on 19.07.1999."

Regarding the service of summons after remand, the Court recorded, "The notices were again issued... the petitioner was not found at his residence... the Process Server affixed the notices at a conspicuous place of his house." However, "The Process Server failed to secure the signature of witness... In the absence of verification... the service of summon cannot be treated as complete."

The Court stated, "In the instant case, the summon cannot be treated as served and consequently, the ex-parte proceedings... ought not to have been drawn by the Trial Court."

It also critiqued the appellate findings: "The appeal submitted by the petitioner was rejected on a technical Count that no written statement was submitted... such finding... is contrary to the record." It noted, "The written statement was already filed by the petitioner and the same was available on record."

Further, the Court examined the grounds of appeal: "Perusal of the memo of appeal especially para-Nos. 2 and 3 thereof, indicate that the ex parte judgment was assailed on its merits as well..." and concluded that the appeal under Section 96(2) CPC was indeed maintainable.

The Court held, "The petitioner has made a prima facie case in his favour that he was not served with any kind of notice and the so-called affixation of summons at his home is doubtful..."

It reiterated, "The ex-parte judgment passed by the trial court amounts to a violation of the principles of natural justice."

The High Court concluded that all three impugned orders were legally unsustainable. It directed, "All the three impugned judgments passed by the three Courts below dated 09.05.2002, 21.07.2004 and 22.09.2020 stand quashed and set aside..."

The Court further directed, "The matter is remitted to the Assistant Collector for deciding the suit afresh, after framing the issues and after granting opportunity of hearing to both the sides, by way of filing their evidence."

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It laid down a timeline for the proceedings: "It is expected from the Trial Court to decide the suit expeditiously preferably within a period of two years from the date of receipt of the certified copy of this order."

The Court justified this timeline by stating, "The reasons for issuing such direction is that the matter pertains to the year 1999."

Finally, it concluded, "The present writ petition stands disposed of. Stay application and all pending application(s), if any, also stand disposed of."

Advocates Representing the Parties:

For the Petitioner: Mr. Dinesh Khandelwal, Ms. Gauri Meena

For the Respondents: Mr. Amit Kuri with Mr. Dharma Ram, Ms. Nandini Mirdha, Mr. Harshvardhan Shekhawat, Mr. Rajesh Kumar Bairwa for Mr. Aatish Jain

Case Title: Ram Kishan v. Ram Dai & Ors.

Case Number: S.B. Civil Writ Petition No. 3789/2021

Bench: Justice Anoop Kumar Dhand