@JUDGMENTTAG-ORDER
N.K. Agarwal, J.@mdashThe instant petition is directed against the order dated 6-4-2009 passed by the Board of Revenue, Chhattisgarh, Bilaspur in Revision Case No. RN/02/R/A-27/199/2008 Village Mohbhattha, Tehsil Mungeli, Distt. Bilaspur whereby and whereunder, learned Board of Revenue quashed the order passed by the Additional Tehsildar, Sargaon dated 28-9-2004 and the order dated 5-5-2007 passed in Sub Divisional Officer, Mungeli in first appeal and the order dated 27-2-2008 in second appeal.
2. Brief facts of the case are as under:
(i) That, an application u/s 178 of C.G. Land Revenue Code (briefly, ''the Code'') was preferred by the petitioner Rambilas Agrawal for recording his name on the land bearing Khasra No. 420/2, 450/1 and 452 in place of respondents in pursuance of one partition deed dated 21-3-2001. On 28-9-2004, the Additional Tehsildar u/s 35 (2) of the Code passed an ex parte partition order directing mutation of aforesaid land in name of applicant in pursuance of partition deed dated 21-3-2001. The respondents did not avail the remedy as provided u/s 35 (3) of the Code.
(ii) That, the respondents pleading their date of knowledge of the said partition order on 7-9-2006 preferred first appeal u/s 44 (1) of the Code before the Sub Divisional Officer, Mungeli along with an application u/s 5 of Limitation Act. Vide order dated 5-5-2007, the Sub Divisional Officer dismissed the application for condonation of delay in preferring appeal and consequently the appeal was also dismissed. The respondents preferred second appeal before the Additional Collector, Bilaspur, which was also dismissed by the Additional Collector on 27-2-2008 affirming the order passed by the Sub Divisional Officer.
(iii) Thereafter, the respondents herein filed revision u/s 50 of the Code before the Board of Revenue in which the order impugned has been passed whereby the original order passed by the Additional Tehsildar directing partition of the property and directing mutation of the said land in favour of the petitioner has been set aside.
3. Learned Counsel for the petitioners submits that the order passed by the Board of Revenue is illegal, perverse and deserves to be quashed and for which, he made the following submissions:
(i) The Board of Revenue has no power to quash the order of Additional Tehsildar in a revision preferred by the respondents against the order passed in second appeal whereby the Appellate Court has dismissed the respondents'' appeal on the ground of limitation, and therefore, the Board of Revenue committed gross illegality in entering into the merits of the case and in quashing the order passed by the Tehsildar.
(ii) The Board of Revenue exercising the revisional jurisdiction exceeded its jurisdiction while condoning the delay in preferring first appeal and second appeal by entering into the merits of the matter. By placing reliance upon two decisions of Supreme Court in the cases of Commissioner, Nagar Parishad, Bhilwara v. Labour Court, Bhilwara and Anr. reported in 2009 AIR SCW 1456, and in State of Jharkhand and Ors. v. Ashok Kumar Chokhani and Ors. reported in 2009 AIR SCW 1537 he submitted that the Court while deciding application for condonation of delay, cannot go into the merits of the case.
(iii) The respondents did not avail the remedy as provided u/s 35 (3) of the Code for setting aside ex parte order upon showing sufficient cause of non-appearance on the date of hearing and in its place, they in their own wisdom chosen to file appeal. In appeal, they can only challenge the merits of the matter but they cannot challenge that the ex parte order has been passed without due service of notice on them and without their knowledge. In support, Shri Paranjpe places reliance upon the decision in the case of
(iv) The allegation of fraud has to be pleaded and proved as in the criminal case and without there being any such specified allegations, evidence and opportunity of rebuttal, finding regarding fraud is perverse.
4. Per contra, Shri Prateek Sharma, learned Counsel appearing for the respondent Nos. 1 and 2, supported the order impugned and submitted that the first and the Second Appellate Court dismissed the application for condonation of delay filed by the respondents by a cryptic order without entering into the real state of affairs of the case. He submitted that in fact, the case was fixed for order on 28-9-2004 whereas service through affixture has been said to be effected upon the respondents on 29-9-2004, which is clear from the certified copy of the service reports (Exhs. P-6, P-7 and P-8) filed by the respondents, and therefore, there was no due service of notice upon the respondents; in fact, by tempering with the record of the Additional Tehsildar, the said order has been obtained by fraud. Fraud vitiates everything. The petitioners have not come with clean hands. They have suppressed the fact that in fact, notices were not served upon the respondents. Therefore, ignoring all these facts, the dismissal of condonation of delay application by both the Appellate Courts was totally incorrect, so also the order passed by Tehsildar without service of notice upon the respondents was contrary to law. And therefore, the order passed by the Board of Revenue which is well reasoned, deserves to be upheld. In support of his submission, he placed reliance upon decisions of Supreme Court in the case of Ganpatbhai Mahijibhai Solanki v. State of Gujarat and Ors. reported in (2008) 12 SCC 353 and K.D. Sharma v. Steel Authority of India Limited and Ors. reported in (2008) 12 SCC 481. Shri Prateek Sharma further submitted that u/s 178 of the Code, Tehsildar has no power to effect partition based on unregistered deed of partition and thus the order of Tehsildar itself is illegal, void and deserves to be set aside.
5. A bare perusal of Para 6 of the impugned order would reveal that the learned Board of Revenue has found the service of notice upon the respondents before the Court of Tehsildar as bad, illegal, contrary to law, obtained by fraud by recording the following reasons for that:
(i) As per original service report, on 29-9-2004, the respondents refused to take notice whereas the order has been passed on 28-9-2004. This service report has been subsequently changed by placing on record the service reports (Exhs. P-12, P-13) and (Exh. P-14). The Sub Divisional Officer found that there is tempering with the record of the Tehsildar with regard to service report and directed police enquiry in this regard on 13-6-2007.
(ii) Service report annexed with the record at present shows that the notice has been issued vide order dated 17-9-2004 for hearing dated 24-9-2004 and at the back of this notice, there is overwriting and date is mentioned as 20-9-2004. Notice has been served by affixture and therefore, it is clear that to avoid notice of the case to the respondents, this manipulation has been done.
(iii) The ex parte order passed by the Tehsildar was contrary to law, which deserves to be set aside.
(iv) The appeal before the First Appellate Court was preferred by the respondents within 45 days from the date of knowledge which is in fact within time.
6. The questions arise for decision making in this case are that:
(i) Whether the Board of Revenue exceeded its jurisdiction while passing the impugned order ?
(ii) Whether while condoning the delay in filing the appeal, the Appellate Court can consider that the ex parte order passed by Tehsildar is contrary to law inasmuch as no service of summons has been effected upon the respondents ?
7. The Supreme Court in the case of Bhanu Kumar Jain (supra), observed in Paras 24 and 25 as under:
24. An appeal against an ex parte decree in terms of Section 96 (2) of the Code could be filed on the following grounds:
(i) The materials on record brought on record in the ex parte proceedings in the suit by the plaintiff would not entail a decree in his favour, and
(ii) The suit could not have been posted for ex parte hearing.
25. In an application under Order 9, Rule 13 of the Code, however, apart from questioning the correctness or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the relevant dated.
8. Therefore, it is permissible for the Appellate Court in the appeal filed against the ex parte order to look into the validity of ex parte proceedings. The Supreme Court in case of Commissioner, Nagar Panchayat, Bhilwara (supra) and in the case of State of Jharkhand and Ors. (supra), has held that while deciding application for condonation of delay in filing the appeal, the High Court could not go into the merits of the same. By applying the ratio laid down in the aforesaid cases, it is clear that as in the instant case, no proceeding has been preferred by the respondent u/s 35 (3) of the Code, therefore, they can challenge the ex parte order even on the ground of illegality/material irregularity crept during ex parte hearing. Learned Board of Revenue while holding that the appeal preferred by the respondents before the First and Second Appellate Court is within time, has not entered into the merits of the matter but has only observed that the ex parte proceedings before the Tehsildar suffers from element of fraud inasmuch as the service of notice has not at all been effected upon the respondents and, therefore, appeal has been preferred within time from the date of knowledge. Learned Board of Revenue further observed that fraud vitiates everything.
9. In the judgments in the case of Ganpatbhai Mahijibhai Solanki (supra) and K.D. Sharma (supra), the Supreme Court has held that fraud vitiates everything. The Supreme Court in the case of
23. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the Court and also amounts to an abuse of the process of Court, the Courts have been held to have inherent power to set aside an order obtained by fraud practised upon that Court. Similarly, where the Court is misled by a party or the Court itself commits a mistake which prejudices a party, the Court has the inherent power to recall it order....
10. The Board of Revenue based on material on record came to the conclusion that as far as service of notice upon the respondents before the Court of Tehsildar is concerned, that vitiates by fraud, and the proceedings could not have been posted for ex parte hearing and, therefore, quashed the order passed by the Tehsildar also. Although any order passed by practicing fraud upon the Court is a nullity, however, learned Board of Revenue ought to have remitted back the matter to the Tehsildar for making decision afresh upon the application filed by the petitioner u/s 178 of the Code.
11. In view of the aforesaid discussion, this petition is partly allowed. The matter is remitted back to the Tehsildar for decision afresh upon the application filed by the petitioners afresh u/s 178 of the Code after giving full opportunity of hearing to both the parties in accordance with law.
