Mukhtiar Singh and Another vs Arjan Singh and Others

This appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned Single Judge, dated July 16, 1968. The writ petition of Arjan Singh respondent was accepted on the ground that the Assistant Director, Consolidation of Holdings, had no jurisdiction to review his previous order filing the appeal of Mukhtiar Singh appellant on the ground that it was barred by time and, therefore, the order of the Assistant Director passed on review on October 22, 1965, was quashed together with the order of the Additional Director Consolidation of Holdings passed on July 20, 1965.

It has been submitted by the learned counsel for the appellant that the learned Single Judge erred in holding that the subsequent order of the Assistant Director passed on October 22, 1965, amounted to review of his previous order filing the appeal of Mukhtiar Singh as barred by time which had been passed in the absence of Mukhtiar Singh appellant and without affording him an opportunity to show that the appeal was within time. When Mukhtiar Singh came to know that his appeal had been filed on the ground that it was barred by time, he made an application to the Assistant Director to hear the appeal on merits as, according to him, it was within time. At the hearing of this application it was pointed out that the order of the Settlement Officer, against which the appeal had been presented, was passed on April 30, 1964 and the application for a certified copy was made on June 22, 1964. The certified copy was received by Mukhtiar Singh, through post on August 12, 1964 and the appeal filed on August 14, 1964 was within time.

The learned Assistant Director after satisfying himself about these facts held that the appeal was not barred by time and, therefore, he decided to hear it on merits. When this order was passed, the respondent, Arjan Singh, was also present and it was not shown by him that the memorandum of appeal presented by Mukhtiar Singh appellant was really barred by time. Arjan Singh did not take this plea even in his application u/s 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, hereinafter called the Act.

The only question for determination, therefore, is whether the previous order of the Assistant Director filing the appeal of Mukhtiar Singh on the basis that it was barred by time amounted to an order dismissing the appeal on merits and could not be reviewed by him. It was held by a Division Bench of this Court in Surinder Singh v. State of Punjab(1966) 68 PLR 828 that-

"the power to set aside an ex parte order made to the prejudice of a party by a judicial or quasi-judicial tribunal without hearing him cannot be equated with a power of review such as is contemplated in and provided by S. 114 and O. 47 of the Code of Civil Procedure. The Pepsu Land Commission possesses inherent power to set aside an ex parte order passed by it in the absence of a party."

On the parity of reasoning it can be held in the present case that the order of the Assistant Director vacating his own previous order passed ex parte filing the appeal as barred by time did not amount to review of that order. That order was passed in the absence of the appellant Mukhtiar Singh and no opportunity was afforded to him to prove that the memorandum of appeal filed by him was within time. He, therefore, made an application for his appeal being heard on merits and the Assistant Director after satisfying himself, that the memorandum of appeal had been presented within time, heard that appeal on merits, in the presence of the parties.

The revision u/s 42 of the Act against that order was also competent. The writ petition was accepted only on the ground that the order passed by the Assistant Director on October 22, 1965, was without jurisdiction and could not be confirmed by the Additional Director on a petition u/s 42 of the Act. The orders passed by the Assistant Director on October 22, 1965 and by the Additional Director on July 22, 1965 were quashed.

In view of what has been said above the order of the learned Single Judge has to be set aside. Since the writ petition was not decided on merits, the case will go back to the learned Single Judge for decision on merits.

For the reasons given above this appeal is accepted and the order of the learned Single Judge is set aside. The writ petition is remitted to the learned Single Judge for decision on merits. There is no order as to costs in this Court.

Appeal allowed.