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TMI Blog1952 (1) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... date on which they were ordered to be dispossessed by the learned Additional Collector, they were in cultivatory possession of the land in dispute. Their case was that as the land was of a cultivated character in the Rabi and Kharif immediately preceding 28th January 1948, the learned Additional Collector had no jurisdiction to allot it under Section 3, U. P. Land Utilization Act, No. V [5] 1948, to the Opposite-party No. 2 or for the matter of that, to any other person. 3. The order allotting the land to Opposite-party No. 2 is an ex parte order and was passed by the learned Additional Collector on 8th April 1950. It was passed by the learned Additional Collector ex parte on the ground that notice had been issued to the zamindar applicants, that they had taken the notice but had refused to endorse the acknowledgment. He regarded that as sufficient service and proceeded with the case ex parte. 4. The case has been argued very ably by Mr. Walter Dutt on behalf of the applicants and by Mr. Dhawan on behalf of the opposite-party No. 2. Learned counsel for the parties have covered a wide ground but, in our opinion, the case can be decided on a short point. After the ex parte orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r notice such as would justify them to get the ex parte order set aside. 6. The difficulty that we feel with this and the other cognate arguments which have been advanced about the nature of service required for notice under the Act is that, in our opinion, there was no evidence of an admissible nature on which the learned Collector could record a finding that notice had been served on the landlord applicants in this case. The report of the process server which is dated 27-2-1950 is to the effect that he went to the house of the three applicants respectively, that in the case of Lala Eamniranjan Lal the notice was thrown in the baithak and in the cases of Lala Mata Din and Lala Hari Nath the notice was taken by them but they refused to sign the acknowledgment. Now, the question whether a notice served in this manner could or could not in law be described as notice within the meaning of Section 3 of the Act and the other relevant provisions of law could only have arisen if the report submitted by the process server had been either verified by him or had been sworn to by him as correct. We have gone through the entire record of the case and are satisfied that the report submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2 has contended that we ought to assume that the Court acted with due formalities and that the failure of the Court to record that the process server had verified the report or had been examined on oath is at best a mere irregularity or accidental omission which in all the circumstances of the case, ought to be ignored. Our attention has been drawn to a number of authorities in regard to accidental omissions. It has also been contended before us that a perusal of the record would show that the entire procedure observed in recording the statement of the process server was substantially the same as the procedure which is observed when a statement on oath is taken of an attesting witness. It was further contended that prima facie if there is any omission, it must be considered accidental, particularly as opposite party No. 2 was not given any opportunity to explain it. We are unable to accept these arguments as correct. There is nothing to show that the omission to record the process server's statement as having been made on oath or as having been accompanied by an affidavit was accidental. We may as ft test point out that the process server could not have been prosecuted under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Evidence Act which enables a Court to take into consideration testimonials given by persons who have not pledged their word to the veracity of the statements made by them. It may be that Mr. Raghubir Saran was misled by the past practice which, I am informed, was prevalent in this Court in this matter. The law, as I understand it, is that those certificates cannot be accepted as evidence of the facts deposed to in them. It is unnecessary to cite any authorities or refer to the various sections of the Evidence Act in support of this proposition. 9. Prom the remarks we have just quoted in the case mentioned above, it will be clear that it is only on statements which are either supported by affidavits or by oral evidence tendered on oath before the Court that the Court can base its findings. The finding that the applicants had been served with notice and had deliberately absented themselves from Court was based upon evidence which we regard as completely inadmissible in law. For this reason we hold that the Court had no material on which it could assume jurisdiction to proceed ex parte against the applicants. We may on this point quote para. 1484 of Halsburys Laws of England, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermining whether a particular writ, direction or order will or will not issue will take into consideration the historic background of that writ, direction or order. Indeed, it strikes us that in cases where the citizen has been left by an Act without any remedy in the shape of an ordinary suit, it may be desirable, in the interest of safeguarding the liberties for which these writs, directions or orders are intended, to help the citizen by the issue of a proper writ, direction or order. We have come to the conclusion that in the interest of justice it is necessary to interfere with the order of the learned Additional Collector in this case. 13. Arguments were addressed to us on a number of other points; but we do not think it necessary to deal with them as we are deciding this case on the narrow point of notice. We must not be understood to have decided anything which would affect the case of opposite-party No. 2. 14. For the reasons given above, we quash the order of the learned Additional Collector dated 8th April 1950 allotting the land to Sardar Kartar Singh, opposite-party No. 2. In the circumstances of this case, we make no order as to costs. - - TaxTMI - TMITax - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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