RABINDRA SINGH versus FINANCIAL COMMISSIONER, COOPERATION, PUNJAB AND OTHERS

Citation: [2008] 8 S.C.R. 813 · Decided: 14-05-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 8 S.C.R. 813 
i 
RABIN ORA SINGH 
A 
FINANCIAL COMMISSIONE~, COOPERATION, PUNJAB 
AND OTHERS 
(Civil Appeal No. 3574 Of 2008) 
MAY 14, 2008 
B 
• 
(S.B.SINHA, LOKESHWAR SINGH PANTA, AND 
'" 
MARKANDEY KAT JU, JJ] 
Punjab Land Revenue Act, 1887 - ss. 20, 21 & 22 - c 
Ex pa rte Decree - Setting aside of - Jurisdiction of Land Rev-
enue Court - On facts , partition suit decreed exparte - Non-
service of notice to defendant, who had been residing abroad 
for last 25 years, though plaintiff had full knowledge of his cor-
rect address - In the plaint address of defendant given as of D 
nearby District- Application u/o IX r 13 CPC by defendant-. 
Dismissed by Tehsildar holding that provision of Review were 
attracted and not application u/o IX r 13 -Application dismissed 
by Revenue Officers as also High Court - On appeal held: 
Plaintiff fraudulently suppressed service of notice upon de-
E 
fendant- Tehsildar could have exercised power of review and 
set aside exparte decree - In .such situations courts have in-
cidental power to set aside the decree on grounds of violation of 
principles of natural justice -For exercise of jurisdiction, source 
}. 
of power is relevant and not failure to mention correct provisions 
j 
of law - Further, substituted service could not have been effected F 
on defendant for service of notice at address at USA - Also, it · 
cannot be said that defendant was not prejudiced - Thus, defen-
dant established sufficient cause for setting aside exparte de-
cree - Order of High Court not sustainable and set aside . 
The question which arose for consideration was G 
,A 
whether the Land Revenue Court has jurisdiction to set 
aside ex-parte decree. 
A suit for partition was decreed ex parte against the 
813 
H 
814 
SUPREME COURT REPORTS 
(2008]8 S.C.R. 
' 
A appellant. The appellant was residing in USA for last more 
1' 
than 25 years and had never been served with any no-
tice, although respondent No. 4 had full knowledge of his 
correct address. The appellant filed application under Or 
IX r 13 r/w s.151 CPC on the ground that the ex patte order 
B was invalid for non service of notice to the appellant. 
Tehsildar exercising the power as Assistant Collector dis-
missed the application holding it to be not maintainable. 
~ 
It held that the Revenue Officer could set aside an ex patte 
-1 
order in particular proceedings by means of review as 
c provisions for setting aside ex patte decree under CPC 
"' 
were not applicable. The Collector dismissed the appeal. 
"
The Commissioner as also Financial Commissioner dis-
missed the revision petition. High Court upheld the or-
der. Hence the present appeal. 
D 
Allowing the appeal, the Court 
HELD: 1.1. The parties are brothers. The allegation 
of the appellant that he had been residing in USA for last 
more than 25 years was not unknown to the respondent 
E No. 4. In the plaint of the suit filed by respondent no.3, the 
address of the appellant was stated to be at village 
Khotheran Distt. Nawanshahr. If, even according to re-
spondent No.4/plaintiff, the appellant had executed a Gen-
eral Power of Attorney in favour of somebody, notices 
could have been served on him through his constituted 
! 
F attorney. The said fact could have been disclosed in the 
plaint itself and steps could have be~lil taken to serve the 
summons upon the said constituted attorney. No such 
step was taken. Nothing was shown that he could have 
accepted notice on behalf of the app~llant and defend the 
G suit. [Para 13] [821-F-H] 
1.2. The Punjab Land Revenue Act, 1887 had been 
;i • 
enacted at a point of time when agriculturists ordinarily 
used to reside in the village. The Authorities under the 
H Act could entertain application for partition of joint family 
RABINDRA SINGH v. FINANCIAL COMMISSIONER, 
815 
COOPERATION, PUNJAB 
i 
property. The provisions laying down the mode of ser-
A 
vice of summons as contained in ss. 20, 21 and 22 of the 
Act must, therefore, be construed having regard to the 
state of affairs as was obtaining during the relevant pe-
riod. Substituted mode of service is permissible in law but 
such substituted mode of service in the changed context 8 
t 
of a member of a family residing abroad for a number of 
.,_ 
years, cannot be held to be sufficient, particularly when 
the plaintiff himself took recourse to suppression veri and 
suggestio fafsi. A purported service by beat of drum or 
publication of a notice in a local newspaper which has no c 
ci

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