2008 (5) TMI 656 - SC - Indian Laws

Whether a Land Revenue Court has jurisdiction to set aside an ex-parte decree? Whether terms for setting aside an ex parte decree should be reasonable?

Issues Involved:
1. Jurisdiction of Land Revenue Court to set aside an ex-parte decree.
2. Validity of service of notice.
3. Applicability of Code of Civil Procedure in partition proceedings under the Punjab Land Revenue Act, 1887.
4. Allegations of fraudulent suppression of notice.
5. Remedies available to a defendant for setting aside an ex-parte decree.

Detailed Analysis:

1. Jurisdiction of Land Revenue Court to Set Aside an Ex-Parte Decree:
The core issue in this appeal was whether the Land Revenue Court had the jurisdiction to set aside an ex-parte decree. The Tehsildar, exercising the power of Assistant Collector, 1st Grade, dismissed an application under Order IX Rule 13 of the Code of Civil Procedure (CPC) on the grounds that the provisions for setting aside ex-parte decrees did not apply to partition proceedings under the Punjab Land Revenue Act, 1887. The Supreme Court, however, held that even if the provisions of the CPC were not directly applicable, the court still had the incidental power to set aside an ex-parte order on the grounds of violation of natural justice.

2. Validity of Service of Notice:
The appellant contended that he had not been served with any notice regarding the partition proceedings, which led to an ex-parte decree. The Assistant Collector noted that notices sent to the appellant were returned unserved, and the address provided was incorrect. The Supreme Court emphasized that substituted service, such as publication in a local newspaper or beat of drum, was insufficient for a person residing abroad. The Court held that proper notice should have been served through the appellant's attorney, considering he had been residing in the USA for over 25 years.

3. Applicability of Code of Civil Procedure in Partition Proceedings:
The High Court had avoided delving into whether the provisions of the CPC were applicable to partition proceedings under the Punjab Land Revenue Act, 1887. The Supreme Court clarified that the revenue officers had the power of a civil court for summoning parties and witnesses. The Court further stated that the principles of natural justice necessitate that the courts have the jurisdiction to set aside ex-parte decrees, irrespective of the specific procedural laws cited.

4. Allegations of Fraudulent Suppression of Notice:
The appellant alleged that the respondent fraudulently suppressed the service of notice. The Supreme Court found merit in this claim, noting that the respondent was aware of the appellant's residence in the USA but failed to serve notice properly. The Court held that fraudulent suppression of notice invalidated the ex-parte decree.

5. Remedies Available to a Defendant for Setting Aside an Ex-Parte Decree:
The Supreme Court highlighted multiple remedies available to a defendant for setting aside an ex-parte decree, including filing an application under Order IX Rule 13, filing a suit alleging fraudulent suppression of service, preferring an appeal, and filing an application for review. The Court referenced the case of Bhanu Kumar Jain v. Archana Kumar, which elucidated that a defendant could pursue both an appeal and an application under Order IX Rule 13 simultaneously.

Conclusion:
The Supreme Court set aside the impugned judgment, directing the appellant to file his written statement within four weeks. The Court emphasized that the principles of natural justice were violated due to improper service of notice and the fraudulent conduct of the respondent. The Court also directed that the case be heard on a day-to-day basis to expedite the proceedings. The appeal was allowed without any order as to costs.

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