Anil Kumar vs Mohd.Shafi Hajam and ors.

Permod Kohli, J.—This is an application seeking setting aside of exparte order dated 24th September, 2004 passed by this court in SWP

No. 1780/2000 whereby writ petition filed by respondent no. 1 herein was allowed and the appointment of the applicant was quashed. It is stated

in the application for setting aside that the applicant is resident of village Barshalla, and he never received any notice from the postoffice either at his

residence or in the school where he was serving at the relevant time; consequent upon his appointment as RehbareTaleem Teacher in the Primary

School at Juddi.

On this application being considered, record of the writ court was summoned. From interlocutory orders passed from time to time, it appears

that on 24th September, 2004 applicant who was respondent No. 5 in the original writ petition was set exparte on the basis of deemed service of

notice through registered post. The registry had noticed that the summon issued to respondent No. 5 under registered cover on 12th August, 04

has not been received back served or unserved nor anybody appeared on his behalf ""even after the expiry of 30 days."" That on the basis of this

report, the applicant was set exparte and court proceeded to decide the writ petition on the basis of the pleadings of the appearing parties and

passed the final judgment dated 3rd November, 2004. Admittedly, the applicant's appointment has been quashed and a direction was issued to

consider the petitioner for appointment provided, he is not disqualified in any manner and is eligible in accordance with the Scheme.

From the original record of the writ petition, it also appears that a registered notice was sent to applicant Anil Kumar, shown to be the resident

of village Barshalla, Tehsil and District Doda, P.O Thatri. Neither the registered envelop nor the acknowledgement due were received back.

Objections have been preferred against this application. Mr. M.P Gupta appearing for the contesting respondents, who was writ petitioner

before the writ court has raised a preliminary objection regarding the maintainability of this application. According to him, High Court rules do not

envisage setting aside of the exparte order or a judgment passed by a writ court. Reference is made to Rule 15(2) which provides service of notice

through registered post with acknowledgement due.

I have examined the writ proceedings rules, 1997. There is no specific rule which envisage initiating exparte proceedings against the

nonappearing respondents nor does it provide for setting aside of the exparte proceedings in the event any such proceedings are initiated against

the respondents. Rule 18 deals with the passing of the exparte order in an interim application where rulenisi is issued. Mr. Gupta, Learned.

Advocate has accordingly submitted that the rules envisage setting aside of proceedings only in respect to interim application and not in the main

writ petition wherever exparte proceedings are initiated.

Apart from above, it is vehemently argued that the applicant has not disputed correctness of his address given in the writ petition and thus it

presumed that he has the knowledge of the proceedings and he deliberately remained away from the judicial proceedings resulting in passing of the

judgment by this court. According to him, this court cannot interfere in the final judgment which has been passed on merits of the controversy

between the parties.

I have heard learned counsel for the parties. Admittedly, the applicant has not disputed the correctness of the address given in the writ petition.

However, his specific averments made in the application that he never received any registered envelop or notice through registered post nor was

served with the copy of the writ petition. He further stated that during the relevant period, he was serving in the School. Postman never

approached him for service of any such notice in the writ petition. The application is duly supported with an affidavit and his allegations in the

application are also required to be examined in the light of the record of the writ petition. There is only one postal receipt and no other document.

The court while proceeding exparte against the applicant relied upon the endorsement of the registry to the effect that the registered notice sent to

the applicant herein was not received in the registry back served/unserved. It was on the basis of this endorsement that the court proceeded

exparte against the applicant on the basis of deemed or in other words presumed service. Specific allegations made in the application have not

been rebutted in their objections as a matter of fact could not have been rebutted. What has been stated is that the applicant deliberately remained

away. It is unimaginable that a person whose service is at stake would remain away form the court and permit the court to pass an adverse order

against him. Mr. Gupta, has further stated that the applicant was duly served. Whenever there is a legal presumption in law, it is considered to be

due service, but it is settled preposition of law that every presumption be it under a statute or otherwise is rebutable in law. From the averments

made in the application, I am satisfied that the applicant has been able to rebut the presumption of due service.

As for the contention of learned counsel for respondents that the court has no jurisdiction to set aside the exparte proceedings in absence of

their being any specific provision, suffice it to say that any court or authority having the power to pass an order necessarily has the power to alter

or modify the same. Such a power is inherent in the rescind, authority who can proceed against a person. Irrespective of the fact whether there is

any specific rule allowing setting aside of the exparte order, this court if, has the power to proceed exparte it necessarily has the power to set aside

the exparte proceedings. This application is accordingly allowed. Order dated 24th September, 2004 is recalled subject to payment of Rs. 2000/

as costs to be deposited in the Advocates Welfare Fund within two weeks. As a consequence of setting aside of the exparte proceedings writ

petition SWP No. 1786/2000 shall stand revived and be listed for consideration.

Mr. Gupta, learned counsel appearing for respondent No. 1 who was the writ petitioner before the writ court submits that as a consequence of

quashment of the appointment of applicant his client (writ petitioner) stands appointed as a R.E.T Teacher in place of the applicant and is working

since May, 2005. Though the Order dated 24th September, 2004 has been set aside and the writ petition revived, its revival will not effect the

appointment of the respondent No. 1 till the writ petition is finally disposed of. The final disposal of the writ petition will decide the fate of

respondent No. 1.