Teja Singh vs State of Punjab and Others

Pritpal Singh, J.

Teja Singh in this writ petition under Article 226 of the Constitution of India has prayed that the orders Annexure P.1 and P.2 of the Collector, Ferozepur, and the Commissioner, Ferozepur Division, respectively, be quashed.

The relevant facts are that in April, 1976 the petitioner was served with a notice under section 7(2) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959 (hereafter referred to as `the Act'') to vacate the land of the Forest Department in his possession. Actually this Act had already been repealed and replaced by the Act of the same nomenclature in July 1973, known as Punjab Act No. 31 of 1973. On the receipt of this notice the petitioner brought a suit for permanent injunction restraining the respondents from interfering with his possession of the said land. This suit was dismissed on the technical ground of nonservice of notice under section 80 of the Code of Civil Procedure upon the State Government. It is plain that the suit was not dismissed on merits. The Collector thereafter passed an ex parte order on October 27, 1976 under section 7 of the Act (Annexure P.1) directing the petitioner to vacate the disputed land forthwith. The petitioner filed an application before the Collector for setting aside the ex parte order on the plea that notice had not been served on him before passing the order. The petitioner also filed an appeal against the order Annexure P.1 before the Commissioner. The Collector did not decide the restoration application. On the other hand he forwarded the same to the Commissioner as appeal against his ex parte order was pending before him. The Commissioner dismissed the appeal in default as also on merits on February 9, 1977 (Annexure P.2). He made no order in respect of the petitioner''s application for setting aside ex parte order (Annexure p.1) which had been forwarded to him by the Collector.

The grievance of the petitioner is that he was not given opportunity of being heard before passing of the impugned orders P.1 and P.2 and also his application for setting aside the ex parte order Annexure 1 had neither been decided by the Collector nor by the Commissioner. Return was filed only by the Collector who did not deny that the petitioner had filed an application before him for setting aside the ex parte order (Annexure P.1). He admitted that he did not decide this application and had forwarded the same to the Commissioner to be decided along with the appeal which had been filed by the petitioner against the order Annexure P.1. The Commissioner did not file any return and, therefore, it remains uncontroverted that the restoration application has not been disposed of by him.

When a matter is decided ex parte against a litigant he has two remedies open to him; namely, (1) for getting that matter restored,and (2) by challenging the order by filing an appeal. Both these remedies can be availed of by the litigant simultaneously. However, if the appeal is decided during the pendency of the application for restoration, the original ex parte order merges into the appellate order and in that case the original court passing the ex parte order is left with no jurisdiction to decide the restoration applicatiion. It has been so held by a Full Bench of this Court in Kartar Singh v. Jagat Singh and others, I.L.R. (1971)2 Punjab and Haryana 110. It was held in that case that the doctrine of merger of the order or decree of an inferior Court in that of the superior Court in exercise of its corrective jurisdiction is wellsettled, Moment the superior Court exercises its appellate or revisional jurisdiction, the order of the inferior Court merges in the order of the superior Court. Once an exparte decree is merged in the appellate decree, the application of the litigant for setting aside the ex parte decree becomes unmaintainable. In this legal position, the order Annexure P.1 has merged in the order Annexure P.2 and now the legality of Annexure P.2 is to be scrutinised.

The impugned order Annexure P.2 indicates that the appeal of the petitioner against the ex parte order of the Collector was not only dismissed in default but also on merits. On merits the finding given is that the petitioner having lost his civil suit is not competent to file the appeal. The dismissal of the appeal on this ground cannot be sustained. As mentioned earlier the petitioner''s suit challenging the notice under section 7(2) of the Act was dismissed on the ground of nonservice of notice under section 80 of the C.P.C upon the State and not on merits. Thus, the Commissioner had committed an error of law in holding that the petitioner''s appeal is unmaintainable on account of the dismissal of the suit.Eviction of the petitioner could be ordered if the provisions of the Act had been complied with. The Commissioner in the impugned order did not touch this aspect of the case while considering the appeal of the petitioner. It is, therefore, plain that the Commissioner did not apply his mind in respect of the merits of the case while deciding the appeal and he was only swayed by the fact of the petitioner''s civil suit having been dismissed. The impugned order is, therefore, bad in law and deserves to be set aside.

In this view of the matter, the impugned order of the Commissioner (Annexure P.2) is quashed and the case is remanded to the Commissioner for deciding the appeal afresh in accordance with law after hearing the parties on merits. The parties have been directed to appear before the Commissioner, Ferozepur Division, on October 24, 1983. No order as to costs.