PROVINCE OF PUNJAB Versus MUHAMMAD YUSAF

1. By a common order connected appeals F.A.Os. 173, 174, 175, 176, 197, 198 of 1978, which raise identical facts are being disposed of.

2. Some land situated at Mauza Khanna Kak, Tehsil Rawalpindi was acquired by Government of Punjab for construction of a Comprehensive High School for Boys. Land Acquisition Collector assessed compensation payable for the land and gave award on 10‑1‑1973. Land‑owners, namely, (i) Col. Shafiq‑ur‑Rehman and others, (ii) Malik Yusaf and another, and (iii) Abdul Khaliq did not accept the compensation and applied to the Land Acquisition Collector, Rawalpindi, for reference to the Civil Court for correct determination of compensation payable for the acquired land. In three separate references, question of compensation was referred to the civil Court. References were consolidated for a joint trial. Province of Punjab, respondent in the consolidated References, was served through Collector, District Rawalpindi on 2‑6‑1973. On 7‑7‑1973, after noting the presence of the parties, Reference Court adjourned the proceedings to 6‑9‑1973 for filing of the reply by the respondent. 6‑9‑1973 was declared a holiday and the case was adjourned to 8‑10‑1973 by Reader of the Court. On 8‑10‑1973, Presiding Officer was on leave and the case was adjourned to 19‑11‑1973. On this date of hearing, presence of the counsel for the parties was marked in the order sheet and the case was postponed to 6‑12‑1973 for the reply to be filed by the Collector. On 6‑12‑1973, since the Presiding Officer was on tour, proceedings were adjourned to 16‑1‑1974. Order recorded on the order sheet showed that counsel for the parties were present on this date of hearing. On 16‑1‑1974, though the counsel for the parties were present, the case was adjourned to 7‑2‑1974 because the Presiding Officer was shown to be on leave. On the adjourned date of hearing i.e. 7‑2‑1974, the case was further adjourned to 12‑3‑1974 for the Collector to file its reply. On this date of hearing also the counsel for the parties were shown present. On 12‑3‑1974, counsel for the land‑owners‑applicants was present but none appeared from the respondent side. Consequently, ex parte proceedings were ordered to be taken against the respondent and proceedings were adjourned to 31‑5‑1974 for recording of the ex parte proof. Original record indicates that the case was adjourned from 31‑5‑1974 to 19‑6‑1975 for recording of the ex parte evidence of the applicants. Evidence of five witnesses was recorded on 13‑1‑1975 while the remaining evidence was concluded on 19‑6‑1975. After the conclusion of evidence, case was adjourned for 5‑7‑1975 and 8‑9‑1975. Order recorded on 8‑9‑1975 indicates that counsel for the parties were present before the Court but the proceedings were adjourned to 12‑11‑1975, on which date, the Reference Court gave its award and enhanced the compensation as shown therein. In addition to 15$ compulsory acquisition charges, petitioners were also allowed interest at the rate of 6$ on the amounts due with effect from 7‑10‑1969 to the date of payment by the Collector.

3. On 3‑11‑1976, Province of Punjab acting through Director of Education, Rawalpindi Region, applied to the Court for setting aside of the ex parte award. An application under section 5 of the Limitation Act 1908 was also put in to seek condonation of delay. Non‑applicants land‑owners resisted the application for setting aside of the ex parte decree as also the request for condonation of delay. It was pleaded in defence that application under Order IX, Rule 13, C.P.C. was barred by time; that no sufficient grounds for setting aside of the ex parte judgment and decree were made out; that the Director of Education had no locus standi to file the application. On merits, the claim of the Government for setting aside of the ex parte decree was repudiated and it was alleged that in the absence of sufficient cause and explanation for the delay of each day the application could not succeed. By a common order, dated 18‑1‑1978, learned Senior Civil Judge, Rawalpindi, after observing that no reason for setting aside of the ex parte decree was disclosed in the applications dismissed the same. In para 4 of the order, learned Judge stated:‑‑

4. "Judgment‑debtor has not averred in this petition that the respondent was not duly served. In fact, the petition does not disclose any reason, as to why the respondent failed to appear in Court after 7‑2‑1974 and why the judgment‑debtor did not participate in the proceedings before issuance of final decree by the Court. Decree was passed on 12‑11‑1975, whereas the application for setting aside ex parte decree has been moved in November, 1976. The very perusal of application for setting aside ex parte decree merits rejection, because no reason for setting aside ex parte decree has been disclosed in the application, I, therefore, reject the application."

5. It also appears from the record that the decree‑holders applied to the Reference Court for review of the award to claim compound interest at the rate of 8$ per annum, instead of 6% allowed to them. By order, dated 18‑1‑1978, this request was also allowed and after reviewing the award dated 12‑11‑1975, decree‑holders were found entitled to get 8$ compound interest. Three appeals F.A.0. Nos. 173, 176 and 198 of 1978, are against the order dated 18‑1‑1978 rejecting the applications for setting aside of the ex parte judgment whereas the other three appeals F.A.0. Nos. 174, 175 and 197 of 1978 are directed against the order, dated 18‑1‑1978 passed on review applications.

6. Dr. G.S. Khan, Advocate appearing for the Province of Punjab submitted: ‑‑

(i) that applications for setting aside of the ex parts judgment could not have been dismissed without allowing an opportunity to the appellant to adduce evidence in support of the averments made therein;

(ii) that the applications showed sufficient cause for non‑appearance of the appellant on the respective dates of hearing;

(iii) that the delay in making the applications should have been condoned for the reasons given in the applications under section 5 of the Limitation Act 1908;

(iv) that in the absence of previous notice to the appellant, impugned award could not be reviewed and rate of interest enhanced from 6% to 8% compound interest. Referred to Order XLVII, Rule 4 Civil Procedure Code.

7. On behalf of respondents, it was submitted by Mian Nazir Akhtar and Muhammad Munir Peracha, Advocates that Appeals Nos. 174, 175, 197, 198 of 1978 were barred by time; that in Appeals Nos. 175, 197 of 1978 certified copies of the impugned award were not filed and the appeals, accordingly, were imperfectly constituted; that in appeal No. 197 of 1978 an application for dispensing with the certified copy was filed but no order either allowing or declining the request was made by the Court; that the applications for setting aside of the ex parte award did not disclose any sufficient cause justifying re‑hearing of the References; that the applications were barred by time and section 5 of the Limitation Act did not apply.

8. On consideration of the submissions and the examination of the original records, all these six appeals are bound to fail because the contentions raised on behalf of the appellant have no substance. Claimant before the Land ' Acquisition Court is in the position of plaintiff and proceedings in the Court on a Reference made to it are in the nature of a suit. By virtue of section 53 of the Land Acquisition Act, provisions of Civil Procedure Code are made applicable to all proceedings before the Land Acquisition Judge except to the extent of inconsistency with any provision of the Code with the provisions of the Land Acquisition Act. Therefore, Order IX, Civil Procedure Code, which is not shown to be inconsistent with anything in the Act is applicable. In this view, applications for setting aside of the ex parte award were maintainable. In terms of Order IX, Rule 13 Civil Procedure Code, two grounds on the basis of which an ex parte decree can be set aside are either the summon was not duly served or that the party was prevented by any sufficient cause from appearing when the case was called on for hearing. If either of these conditions are satisfied, the Court is obliged to set aside the ex parte decree and where these conditions are not satisfied, decree cannot be recalled. In the present case, service upon the appellant was not denied and rightly so because the District Collector was served by summons issued from the Court and representative on its behalf participated in proceedings on number of dates and requested for time to file the reply. However, on 12‑3‑1974, none appeared for the present appellant and ex parte proceedings were ordered against them. As indicated in the preceding paragraphs after ex parte proceedings were taken against the appellant, case was adjourned for number of dates but none from the appellant cared to appear to take part in the proceedings. Service having not been denied, it was clearly for the appellant to establish that there was sufficient cause for their non‑appearance on the date of the default and also thereafter. Even a cursory glance on the applications moved for setting aside of the ex parte award would indicate that no cause much less sufficient cause was shown for the non‑appearance on behalf of the appellant. The ground given was wholly insufficient. Therefore, the learned Land Acquisition Judge was right in observing that no sufficient cause was shown for making an order for re‑hearing of the case. Additionally, these applications were barred by time. Each day of delay beyond the prescribed period appellants were obliged to explain Section 5, Limitation Act, then did not apply to the proceedings for setting aside of the ex parte decree. On part of the appellant, it clearly appears to be a case of negligence. Non‑appearance cannot be attributed to any other cause except inaction and indifference. On the cause shown, ex parte decision could not be recalled. If some vigilance expected of the appellant was shown result may have been different. In default of sufficient cause not established in the case decision of the Court below cannot be termed as erroneous. Dr. G.S. Khan did not deny service upon the Collector nor that it was not a proper and adequate service. It was pointed out that due to internal transfers of certain officials, lapse came to be made. I do not consider it to be either a sound ground or a sufficient cause for the Government to ask for re‑hearing of the Reference. From the present records, it is evident that the applications filed by the appellant did not disclose good cause for setting aside of the ex parte award. No amount of evidence adduced on behalf of the appellant could have established that they had sufficient cause for non?appearance on the relevant date. Evidently, appellant could not be permitted to lead evidence at variance with the statement in their applications. In this view of the matter, contention on behalf of the Government that the Court was not justified in rejecting the applications without inquiry and evidence was not correct. Period of limitation for setting aside of the ex parte decree provided by Article 164 is thirty days. It commences from the date of decree and in case summons are not duly served, from the date of the knowledge of the ex parte decree. In the present case, service was not denied. Terminus a quo shall be thirty days from the date of the ex parte decision. As observed above, on the date of applications, section 5 of the Limitation Act did not apply. Therefore, applications were barred by limitation. Objection in regard to non‑filing of the copy of the award alongwith the appeals Nos. 175, 197 of 1978 is also forceful. Section 26(2) of the Land Acquisition Act says that the award made by the Court shall be deemed to be a decree and the statement of the grounds of the award a judgment within the meanings of section 2 clause (ii) and section 2, clause (ix) of the Code of Civil Procedure. Therefore, award of the Land Acquisition Judge is both an order and a decree by virtue of the deeming provisions in section 26(2) of the Act. In the ordinary sense though award is not a decree but it is deemed to be so by operation of law. Therefore, in law, it shall be treated to be a decree under the Code of Civil Procedure for all purposes including appeal to the High Court. Section 54 of the Land Acquisition Act provides for an appeal from the award of the Court to the High Court. Order XLI, Rule 1, C.P.C. lays down that every appeal shall be preferred in the form of a memorandum signed by the appellant or his Pleader and presented to the Court or to such officer as it appoints in this behalf. It further says that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. It is essential that a copy of the decree appealed from must accompany the memorandum of appeal. Copy of judgment can be dispensed with if the Court so directs but no such power is available in regard to the copy of the decree. In Mubarik Ali Shah v . Secretary of State A I R 1925 Lah. 438 a Division Bench judgment, this Court observed:‑‑

9. "The references were no doubt heard together and disposed of by one judgment, but they were separate references under the Land Acquisition Act and the appeals were quite distinct. It was absolutely essential that a copy of the decree should accompany each Memorandum of Appeal and the appellate Court has, in our opinion, no power to dispense with such a copy.

10. We, therefore, consider that objection to Syed Mubarik Ali Shah's appeal has force and that there is no properly filed appeal before this Court. It is evident from the record that Court had not dispensed with the copy of the award either expressly or impliedly. Therefore, the Memorandum of Appeals unaccompanied by the copy of the award cannot be treated to be valid appeals."

11. At the hearing of the appeals, learned Government Advocate did not request for time to file the copies of award. Appeals 174, 175, 197, 198 of 1978 are also barred by limitation. Admittedly, period for appeal from the award of the Land Acquisition Judge to the High Court is governed by Article 156 of the Limitation Act, 1908. It provides 90 days to commence from the date of the decree or order appealed from. Giving the benefit of time taken in obtaining the required copies, appeals are still beyond prescribed period of limitation. Government have filed applications under section 5 of the Limitation Act for condonation of delay. Reasons given therein, in my opinion, do not constitute sufficient cause. Appellants were expected to show vigilance and if in the default committed by them a right accrued to the present respondents they are justified in saying that this right should not be taken away from them. To sum up, applications for setting aside of the ex parte award were barred by limitation and disclosed no sufficient cause for non‑appearance on the crucial dates of hearing. Appeals filed from the ex parte award were either barred by time or were not constituted properly. Before I leave this part of the case and proceed to take up the other point, it is necessary to observe that appeal is provided against the award of the Land Acquisition Judge only. In Banshidhur Marwari and others v. Secretary of State for India A I R 1927 Cal. 533, Rajendra Nath Kanrar v. Kamal Krishna Kundu Chowdhury A I R 1932 Cal. 558, it is ruled that no appeal lies from the order dismissing an application under Order IX, Rule 13 Civil Procedure Code for setting aside an award made ex parte by the Land Acquisition Judge. However, in default of adequate assistance, I do not propose to offer my considered comment on this point. If appeal does not lie, indisputably, remedy in revision is available. In these circumstances, I shall feel content to rest my decision on merits, rather than throwing out the lis on a mere technicality. At the hearing, learned Government Advocate did not request that in absence of right of appeal, appeals be treated as civil revisions. However, on merits, no interference is called for.

12. I shall now consider the question whether the award could be reviewed and rate of interest enhanced. Section 28 of the Land Acquisition Act 1894 was amended by Act III of 1969 and the rate of interest was enhanced from 6$ per annum to compound interest at the rate of 8$ per annum. In making the ex parte award, amended provision of law appeared to have been overlooked by Land Acquisition Judge. Learned Government Advocate did not dispute the proposition that the respondents were entitled to receive interest at the amended rate. His only objection was that the award could not be reviewed without notice to the Government, and, therefore, for this purpose requested that the case be remanded to the Land Acquisition judge for deciding of it afresh after notice to the Government. For two‑fold reasons, I cannot accept this contention. Firstly, under the amended law interest at the rate of 8% per annum was to be given. In dis‑regarding the existing law, learned Judge committed an error visible on the face of record. It is true that review without notice was not possible and even if the case could be taken to fall under section 152, C . P . C . notice to the opposite party was necessary before its burden was enhanced. I put a question to Government Advocate as to what good purpose, remand shall serve. He looked in vain for a suitable reply and then submitted that it shall serve the purpose of statutory provisions of law, which required a notice to the affected party. However, he was constrained to admit that even in remand, result would not be different. Record indicates that compensation at the enhanced rate has already been received by the land‑owners. It shall be no justice to re‑open the case to fetish a mere technicality. In my view, the case falls under section 152, C.P.C. Appeal or review was not the only remedy available to the land‑owners. They could justifiably make an application under section 152, C.P.C., for correction of the error. Section 152 of the Code was wide enough to cover a case of the present kind. The error was accidental and could be discovered without much trouble. In these circumstances, I do not think that Government have any valid defence to the case of the respondents for claiming interest at the enhanced rate. If I were to accept the contention of the Government Advocate, it shall result only in a technical remand, which of course I am not prepared to adopt. For the reasons given above, interference is declined and the appeals are dismissed but with no order as to costs.

13. A.A./P‑33/L ???????????????????????????????????????????????????????????????????????????????????????? Appeals dismissed.