2025:HHC:18181 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CWP No. 9696 of 2025. Decided on : 16.06.2025 Dola Ram and others. …Petitioners Versus State of Himachal Pradesh and others. …Respondents Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge Whether approved for reporting?1 Yes For the petitioners : M/s Ajay Kumar Dhiman and Tara Chand Chauhan, Advocates. For the respondents : Mr. Pushpinder Jaswal, Additional Advocate General, for respondents No.1 to 3. Ajay Mohan Goel, Judge (Oral) By way of this writ petition, the petitioners have, inter alia, prayed for the following reliefs:- “a) That writ in the nature of certiorari may kindly be issued and the order dated 3-08-2024 (P-9) passed by the Ld Financial Commissioner (Appeals) Shimla in case no 18 of 2020 titled as Dola Ram and ors Versus Jagat Ram may kindly be quashed and set aside. 1Whether reporters of the local papers may be allowed to see the judgment? 2 2025:HHC:18181 b) That writ in the nature of mandamus may kindly be issued directing the respondent not to continue the proceedings by the Ld Assistant Collector IInd Grade Bagshar (Karsog).” 2. The petitioners are aggrieved by order dated 03.08.2024, passed by the learned Financial Commissioner (Appeals), Shimla, in Revision Petition No. 18 of 2020, titled Dola Ram & Ors. Vs. Jagat Ram, in terms whereof, the recommendations made by the learned Divisional Commissioner, Mandi, in Case No. 104 of 2019, titled Dola Ram & Ors. Vs. Jagat Ram, dated 08.01.2020, to the Learned Financial Commissioner (Appeals), Himachal Pradesh, under Section 17(3) of the H.P. Land Revenue Act, 1954, for passing an appropriate order, on the strength of the order passed by the learned Divisional Commissioner, was declined by the learned Financial Commissioner and the Revision Petition was dismissed. 3. Brief facts necessary for the adjudication of this petition are that an application for demarcation and issuance of spot map was filed by the private respondent Jagat Ram, in the Court of learned Assistant Collector, 1st Grade, Karsog, in which 3 2025:HHC:18181 the present petitioners were impleaded as party respondents. Response to the said application was filed by the present petitioners. As per the record, the application filed by Jagat Ram for demarcation, was dismissed in default on 17.07.2017. An application for recalling the said order in terms of Annexure P-4, appended with the petition, was filed by Jagat Ram in which, it was averred that the applicant was not aware of the matter being listed on 17.07.2017 for the reason that on the date preceding 17.07.2017 i.e. 07.07.2017, the learned Presiding Officer was on tour and the case was fixed for 10.07.2017 with the remarks to “recall” the parties. It was further averred in the application that thereafter no summons were received by him for his presence for 17.07.2017. 4. Said application was allowed by Assistant Collector, 1st Grade, Karsog, on 06.12.2018, in the following terms:- “06.12.2018: Case called. 1. Sh. Jagat Ram along with Adv. D.C. Guleria (Applicant). 2. Sh. Durga Ram (R). 3. Sh. Tara Chand for respondent No.3. The application dated 2309.2017 under Order 9 was 4 2025:HHC:18181 taken up along with reply dated 20.102018. The arguments put forth before this Court mainly on the issue of jurisdiction, delay in filing the application were considered. Orders of this Court dated 10/7/2017 followed by order dated 17/7/2017 were passed. After considering all the facts I am of the firm opinion to allow the application dated 23/9/2017. The case to resume from the proceeding of 10/7/2017. Since one party i.e. R. No. 1 is not present, the summon be issued. Rest of the parties are served notice to be present on 05/01/2019. Announced.” 5. Feeling aggrieved, the petitioners herein preferred an Appeal under Section 14 of the H.P. Land Revenue Act, against the order passed by Assistant Collector, 1st Grade, Karsog, dated 06.12.2018. In terms of Annexure P-6, dated 07.02.2019, the Appeal was dismissed by Sub-Divisional Collector, Karsog, by assigning the following reasons:- “5. I have heard the arguments of both the parties and perused the case file of the trial court. Sub- section (1) of section 5 of the Civil Procedure Code says that "Where any Revenue Courts are 5 2025:HHC:18181 governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe." The HP Land Revenue Act, 1954 does not contain any specific provision for setting aside ex parte decree, as contained in Order 9 Rule 13 of the CPC, hence the respondent's application in the lower court was justified. Article 122 of Part 1 of Third Division Applications of The Schedule (Periods of Limitation) of the Limitation Act, 1963 states thirty days from the date of dismissal as the limitation period "to restore a suit or appeal or application for review or revision dismissed for default of appearance or for want of prosecution or for failure to pay costs of service of process or to furnish security for costs". Whereas, the perusal of the case file of the lower court shows that the application was filed by the 6 2025:HHC:18181 respondent in the Ld. trial court 67 days after the passing of the ex parte order on 23/9/2017, and was hence beyond the period of limitation. Further, not only did the AC 1" Grade condone this delay even when an application to this effect was not made by the respondent, but the order dated 6/12/2018 is not a speaking order. But, examination of the file also revealed that the lower court had committed a major lapse when it ignored its own order dated 10/7/2017 whereby both parties were to be summoned. No summons to this effect were found in the case file. It is a well-established principle that "Litigants should not be penalized for an omission of the court", which was also held by the Hon'ble Supreme Court in Arsad vs Bani Prosanna Kundu & Ors [Civil Appeal No. 4805 of 2014]. Further, "Rules of procedure is a handmaiden of justice, not themistress, a lubricant, not a resistant in the administration of justice. "The Hon'ble Supreme Court also held in State of Panjab & Anr vs Shamlal Murari & Anr [AIR 1976 SC 1177] that "Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice." In the current case, the respondent has made 7 2025:HHC:18181 procedural errors, as recounted above, in the trial court. But, it all stems from the fact that the lower court too has committed lapses. Therefore, for this court to ignore that fact and focus solely on the procedural lapses of the respondent would be grave injustice. It is clear as daylight that the ex parte order of the lower court dated 17/7/2017 arose out of the lapses of the lower court, and the restoration of the application by the lower court vide order dated 6/12/2018 will only further the cause of justice. Hence, in light of the above, this appeal is dismissed. The case file is remanded to the court of AC 1 Grade Karsog.” 6. Thereafter, a Review Petition was filed by the petitioners against order dated 07.02.2019, but the same was dismissed by Sub-Divisional Collector, Karsog, vide Annexure P-7, dated 23.04.2019. 7. Feeling aggrieved, the petitioners preferred a Review petition under Section 17 of the H.P. Land Revenue Act, 1954, against order dated 23.04.2019, passed by the Collector, Sub-Division Karsog i.e. the order passed by the Collector in the Review Petition. However, no revision was preferred against the order passed by Collector, Sub-Division, Karsog, dated 07.02.2019, in the main Appeal that was 8 2025:HHC:18181 preferred by the present petitioners, meaning thereby that there was no challenge to the main order passed in the Appeal by Collector, Sub-Division, Karsog. The Revision Petition was allowed by Divisional Commissioner, Mandi, vide order dated 08.01.2020, by assigning the following reasons:- “After hearing the arguments advanced by the respective Counsels of the parties and after having gone through the record of the case, it transpires that the demarcation application filed by the present respondent was dismissed in default by the trial Court on 17-07-2017 when neither the present respondent nor his Ld. Counsel was present before it. An application dated 23-09-2017 under Order 9 Rule 13 read with Section 151 of the C.P.C for setting aside the dismissal order was filed by the present respondent before the Trial Court. The reply to this application dated 20-10-2018 was filed by the present petitioners wherein the application was resisted and it was specifically averred that the application was time barred as the same was filed after the expiry of 30 days. The application was allowed by the AC 1" Grade after hearing the parties on 06-12-2018. The perusal of the Order dated 06-12-2018 reveals that no reasons, whatsoever, in allowing the application have been 9 2025:HHC:18181 reduced in writing by the Trial Court. This Court is at a loss to understand as to how the time barred application could be allowed when no application for condonation of delay was ever filed alongwith the application under Order 9 Rule 13 read with section 151 of the CPC, more so, when the application was vehemently opposed by the present petitioners. As such the Order passed by the AC 1" Grade is not legally sustainable and is liable to be set aside. Similarly, the perusal of the Order passed by the Collector reveals that he has rightly arrived at the conclusion that the application for restoration was time barred. However, he has justified the action of the Trial Court for restoring the demarcation application on the ground that the Order dated 17-07-2017 whereby the application was dismissed in default itself suffered from procedural lapses as no summons were ever issued to the present respondent to be present on 17-07-2017. However, this Court is not in agreement with this reasoning of the Ld. Collector as two wrongs don't make a right. It was open for the present respondent to file appeal against the Order dated 17-07-2017 within time. As such the Order passed by the Ld. Collector is also not legally sustainable and is liable to be set aside. 10 2025:HHC:18181 In view of the facts narrated above, the orders dated 07-02-2019 and 06-12-2018 passed by the Collector, Sub-Division, Karsog and the Assistant Collector First Grade, Karsog are required to be set aside. The case is, therefore, reported and recommended to the Hon'ble Financial Commissioner (Appeals), H.P. under Section 17 (3) of the H.P. Land Revenue Act, 1954 for passing an appropriate Order as he may deem fit. The case file of this Court along with the record of both the lower Courts is also enclosed herewith. All pending miscellaneous applications, if any, shall stand disposed off. Since the Order was reserved on 03-01-2020, the same be communicated to the parties through their respective Ld. Counsels.” 8. The recommendations made by the Divisional Commissioner, Mandi, stand declined by the learned Financial Commissioner (Appeals), in terms of the impugned order, Annexure P-9, dated 03.08.2024. 9. Shri Ajay Dhiman, learned counsel appearing for the petitioners strenuously argued that the order passed by the Divisional Commissioner, Mandi, was a reasoned order and there was no occasion for the learned Financial Commissioner 11 2025:HHC:18181 (Appeals), to decline the recommendations and dismiss the Revision Petition. Learned counsel submitted that as the application filed by private respondents herein for the review of the order, in terms whereof, the application filed for demarcation was dismissed in default, was not maintainable and secondly, as there was no application filed for condonation of delay in moving the application, the order of review passed by the first Authority i.e. Assistant Collector 1st Grade, was per se bad, as was correctly held by the learned Divisional Commissioner, Mandi and this extremely important aspect of the matter has been ignored by the learned Financial Commissioner (Appeals). No other point was urged. 10. Having heard learned counsel for the petitioners and having carefully gone through the orders appended with the petition, including the impugned order, this court is of the considered view that there is no infirmity in the order passed by the learned Financial Commissioner (Appeals). 11. As is evident from the facts that have been narrated by me hereinabove, the application which was preferred by the private respondent herein, though is ill worded, but the same 12 2025:HHC:18181 was simply for recalling the order passed by the Authority, dated 17.07.2017, in terms whereof, the application filed by Jagat Ram, for demarcation of the land, was dismissed in default. The Authority recalled the order by assigning the reason that no summons were issued to the said applicant, for his appearance on 17.07.2017. 12. This Court called upon learned counsel for the petitioners to demonstrate that the findings returned by the Assistant Collector, upheld by the learned Financial Commissioner (Appeals), were perverse findings, but he could not demonstrate so. On the contrary, the zimni orders appended with the petition as Annexure P-3 demonstrate that when the case was listed on 30.05.2017, the same was ordered to be listed for 16.07.2017. However, on 16.07.2017, the case was listed for 07.07.2017, by the Reader, as the Presiding Officer was not available. Thereafter, on 07.07.2017, again the Presiding Officer was not available and again, the Reader marked the case to be listed on 10.07.2017. 13. First of all, this court would like to make an observation that when the Presiding Officer was not available, 13 2025:HHC:18181 the Reader of the Court had no authority to give any dates and fresh summons were required to be issued to the parties for their presence. This Court in its judgment dated 14.05.2025, passed in CWP No. 6342 of 2023, titled Kuldeep Singh & anr. Vs. State of H.P. & Ors., by placing reliance upon the earlier judgment of this Court passed in Cr.MMO No. 06 of 2010, titled titled Satya Parkash Katiyal Vs. Smt. Usha Chauhan and others, decided on 23.03.2010, has held that the Reader of the Court has no power to fix the case binding the parties for their presence. 14. Zimni orders further demonstrate that on 10.07.2017, when the case was taken up, neither of the parties were present and it was ordered that the parties be “summoned for 17.07.2017”, however, no summons were issued to the parties for their presence on 17.07.2017. As the applicant did not appear before the learned Presiding Officer on 17.07.2017, the application was dismissed in default. This order was recalled by the Authority vide Annexure P-5. 15. This Court would like to make an observation that though order dated 6.12.2018 passed by the Authority is not 14 2025:HHC:18181 happily worded, but one can make out from the same that it was after the perusal of the previous zimni orders passed in the matter that the Presiding Officer decided to recall the order in the light of the fact that no summon was issued for the presence of parties for 17.07.2017. 16. At this stage, this Court would like to emphasize that this order of recall cannot be construed to be an order of review, as was argued and stressed by the learned counsel for the petitioners. Besides this, his contention that the Authority was having no jurisdiction to decide the application, is liable to be rejected, because the power to recall an order passed, dismissing an application in default, would obviously lie with the Authority which has passed such order. 17. The other contention of the learned counsel that as the application filed for recalling the order was not accompanied by an application for condonation of delay, therefore, the Authority was not having any power to recall the order, also has no merit, for the reason that in the peculiar facts when the application was erroneously dismissed by the Court in default, even if the order was recalled, without there being any 15 2025:HHC:18181 formal application praying for condonation of delay, after hearing the parties, same cannot render the order to be bad in law. In fact, as the case was wrongly dismissed in default, at the back of the party, there was no need for filing such application in the peculiar facts of the case. 18. In terms of record, one finds that against the order of recall passed by the Authority, the petitioners preferred an Appeal. Said Appeal was dismissed on 07.02.2019. No revision was filed against order dated 07.02.2019 by the petitioners. They preferred a Review Petition which was again dismissed by the Authority on 23.04.2019. 19. Thereafter, rather than challenging the order that was passed in Appeal, the petitioners only challenged the order that was passed by the Authority in the Review Petition, meaning thereby that as far as the main order passed by the Authority dismissing the main Appeal is concerned, the same attained finality. 20. In this backdrop, this Court is of the considered view that the Revision Petition preferred by the petitioners before the learned Divisional Commissioner, was not maintainable in the 16 2025:HHC:18181 absence of there being any challenge to the main order passed in appeal. However, Divisional Commissioner, Mandi, failed to appreciate this extremely important aspect of the matter and erroneously recommended the setting aside t order passed by the Assistant Collector, dated 07.02.2019, for recall of the order of dismissal in default, without appreciating that in the absence of there being any challenge to the said order passed in Appeal by way of revision, no power was vested with the Divisional Commissioner to recommend setting aside of this said order. 21. Now, when one peruses the order passed by the learned Financial Commissioner (Appeals), one finds that the reasoning assigned by the learned Financial Commissioner (Appeals), in not accepting the recommendation of the Divisional Commissioner is equitable and rational reasoning, which calls for no interference. In fact, as I have already observed hereinabove that in the light of the fact that the Revision Petition, which was preferred before the Divisional Commissioner, was not maintainable, the order passed thereupon by the Divisional Commissioner was having no legal force. 17 2025:HHC:18181 22. Learned Financial Commissioner (Appeals) has now only relegated the parties back to the position where they were before 17.07.2017, meaning thereby, that no prejudice has been caused to the present petitioners. No findings on merit stand returned against the petitioners. All that learned Financial Commissioner (Appeals), has held is that the order in terms whereof the order of dismissal in default has been recalled is a justifiable order and the parties stand relegated it to the Authority to decide the application for demarcation of land filed by the applicant. The argument raised by the learned counsel that application filed for demarcation was not maintainable, can be raised before learned Assistant Collector, 1st Grade, Karsog. This issue is open. 23. Therefore, as this Court finds no merit in the present petition, the same is dismissed. Pending miscellaneous application(s), if any, also stand disposed of accordingly. (Ajay Mohan Goel) Judge June 16, 2025 (Shivank Thakur)