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S.B. CIVIL WRIT PETITION NO.7808/2009.
Babu Lal Vs. B.O.R., Ajmer & Ors.
Date of Order : 7th August 2009.
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. C.R. Jakhar, for the petitioner.
...
BY THE COURT:
Having heard the learned counsel for the petitioner and
having perused the material placed on record, this Court does
not find even a wee bit of justification to entertain this writ
petition.
It appears from the material placed on record that the
revenue suit bearing number 51/1996, as filed by the
respondent No.4 came to be dismissed by the Sub-Divisional
Officer, Jodhpur by the order dated 15.10.1996 (Annex.3) after
finding that the plaintiff has failed to implead the recorded
khatedar of the land in question a party to the suit; and after
holding that such recorded khatedar, from whom the
defendant allegedly purchased the land in question, being a
necessary party, the suit was liable to be dismissed under
Order I Rule 9 of the Code of Civil Procedure (CPC). An
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application was, however, moved on behalf of the plaintiff
seeking review of the order so passed by the learned Trial
Court. The learned Trial Court proceeded to allow the review
application bearing number 76/1996 by its order dated
17.09.1997 (Annex.6) without stating any reason and merely
observing that there being error in the order dated 15.10.1996,
the same was required to be recalled. Aggrieved, the petitioner
preferred an appeal bearing number 77/1997 before the
Revenue Appellate Authority, Jodhpur (‘the RAA’).
The learned RAA partly allowed the appeal so preferred
by the petitioner by the order dated 16.03.1999 (Annex.7)
while observing that the impugned order dated 17.09.1997
was not carrying any discussion nor contained any reason for
allowing the review application; and, while setting the order
dated 17.09.1997 aside, remanded the matter to the
subordinate Court for decision of the review application on
merits with a reasoned order after hearing the parties.
The petitioner was not satisfied even with the order so
passed by the learned RAA and preferred a revision petition
before the Board of Revenue, being Revision Petition No.
11332/1999. The learned Member of the Board, however,
rejected the revision petition by the impugned order dated
09.07.2008 (Annex.8) with the observations that there was
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nothing of jurisdictional error in the order passed by the RAA
so as to call for interference in the revisional jurisdiction.
Seeking to challenge the orders dated 16.03.1999 and
09.07.2008 as passed respectively by the RAA and by the
Board, the petitioner has preferred this writ petition. The
learned counsel for the petitioner strenuously contended that
the RAA has failed to exercise properly the jurisdiction vested
in him and has unnecessarily remanded the matter to the Trial
Court. Learned counsel submitted that when the entire
material was available on record, there was no reason that the
RAA did not decide the appeal on merits and instead
remanded the matter to the subordinate Court. According to
the learned counsel, the RAA and the Board have failed to
consider the principles referable to Order XLI Rule 33 CPC
and have failed to consider that there was no occasion for the
appellate authority to remand the matter to the Trial Court; and
the appellate authority itself ought to have decided the matter
on merits. The learned counsel also pointed out that the RAA
proceeded to pass the impugned order of remand even though
nobody chose to appear for the plaintiff-respondent. The
learned counsel submitted that in the overall circumstances,
the appeal preferred by the petitioner ought to have been
allowed for there was no ground to review the order dated
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15.10.1996.
The submissions do not make out any case for
interference in the writ jurisdiction of this Court.
The order as passed by the RAA on 16.03.1999 cannot
be said to be an order made without jurisdiction nor could it be
said that the appellate authority has acted illegally or with any
irregularity. When the impugned order dated 17.09.1997
(Annex.6) was found to be a non-speaking one; and no reason
had been stated by the Trial Court for allowing the review
application, in the given circumstances, the appellate authority
was perfectly justified in setting aside the impugned order and
remanding the matter to the subordinate Court. The
submission as made by the learned counsel that the appellate
authority ought to have decided the matter on merits cannot be
accepted looking to the nature of the order dated 17.09.1997;
and the order of remand as passed in this case cannot be
said to be unnecessary or unjustified. The absence of the
plaintiff-respondent at the time of decision of the appeal has
hardly any bearing on the order impugned.
Moreover, the Board of Revenue has considered the
matter in its revisional jurisdiction and has found nothing of
illegality or material irregularity in the order passed by the RAA
so as to warrant interference.
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Looking to the nature of the orders aforesaid, this Court
does not find any reason or circumstance wherefor the
impugned orders could be said to be suffering from any such
jurisdictional error that could be leading to failure of justice.
With the order of remand, the matter would be required to be
considered and decided on merits by the learned Trial Court.
There cannot be said to be any failure of justice if the review
application is decided on its merits.
The writ petition is bereft of substance and is, therefore,
rejected.
(DINESH MAHESHWARI), J.
//Mohan//