JUDGMENT
C.M. Lodha, C.J.
1. This petition under Article 226 of the Constitution is directed against the orders of the Board of Revenue for Rajasthan dated October 7, 1974 and September 20, 1977. No body has appeared on behalf of the non-petitioners. Hence we have heard the case ex-parte.
2. From the facts narrated in the writ petition it appears that the petitioners filed a suit in the court of Sub-Divisional Officer, Pali, for division of agricultural land comprised of Khasra Nos. 1214, 1215, and 1217 situate in village Khairwa against the non-petitioners Nos. 1 to 5 alleging that non-petitioners Nos. 1 to 4 were co-tenants in respect of the suit land. The learned Sub-Divisional Officer disallowed the prater for partition on the ground that such division amongst the persons entitled there to would result in shares of less area than the minimum prescribed under Section 53 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act) and therefore, he directed sale of the same aid distribution of the proceeds there of amongst the co-sharers.
3. Aggrieved by the judgment & decree of the trial court, the defendant non petitioner filed appeal before the Revenue Appellate Authority, bikaner who, by his order dated February 10, 1972, framed three additional issues and remanded the case to the trial court to decide the case afresh. The petitioners filed review petition against the order of the Revenue Appellate Authority and also took the matter in appeal before the Board of Revenue, but were unsuccessful.
4. On December 16, 1972 counsel for both the parties were present before the trial court and the court observed that the file of the case could not be perused and therefore the case may be fixed on January 15, 1973, for pronouncing orders. It appears from the order sheet dated August 25, 1972 that the plaintiffs had filed some application and the case was being postponed for pronouncing orders there on. On January 15, 1972 instead of pronouncing orders, the court dismissed the suit in default since the plaintiffs was absent Aggrieved by the order dated January 15, 1973, the petitioners filed a revision application before the Board of Revenue and urged that the suit had not been fixed for hearing on January 15, 1973 and hence the suit should not have been dismissed in default The learned Member of the Board, how ever, dismissed the revision on the ground that the proper remedy for the plaintiff was to make an application for restoration of the suit With this observation, the revision petition was dismissed in limine. The petitioner, thereafter, filed a review petition before the Board and the same too was dismissed on the ground that the State had not been made a party to the review petition. Hence, this writ petition.
5. It is true that the petitioner could have made an application for restoration of the suit dismissed in default before the trial court, but even if he did not do so, the Board could have invoked its power of superintendence over the subordinate revenue court under Section 221 of the Act if a case for interference with the order of the subordinate revenue court was made out. Now, in the present case, as would appear from the facts narrated above, the case was fixed for January 15, 1973, for pronouncing orders. It is well settled that when a case is fixed on a certain date for pronouncing judgment or orders on any matter it cannot be dismissed in default. The parties are not required to do anything in the matter as the court has only to pronounce its order. In this view of the matter, we are of opinion that it is a fit case where the impugned order of the Sub-Divisional Officer, Pali, dated January 15, 1973 dismissing the plaintiffs suit for default, must be set aside.
6. Accordingly, we allow this petition, set aside the orders of the Board of Revenue dated October 7, 1974, and September 30, 1977, and also the order of the Sub Divisional Officer/Assistant Collector, Pali, dated Jan. 15, 1973, dismissing the suit in default and direct that the suit be restored to its original number and be proceeded with in accordance with law.
7. There will be no order as to costs.
