31.

Conferral of status of Courts on Board and

Revenue Officers.- The Board of a Revenue Officer, while
exercising J
power under this Code or any other enactment for the time
being L
in force to enquire into or to decide any question arising for g
determination between the State Government and any person
or

mt
between parties to any proceedings, shall be a Revenue Court.

Sti
COMMENTARY
SYNOPSIS I i)
1
1. General interpretation.
2. Revenue Courts are Courts.
3. Further procedure.
4. Exclusion of time.
5. General.
1.General interpretation.-! 1] The section confers the status of
a Court on a Revenue Officer, exercising powers under this
Code or any other enactment for the time being in force, in
the matter of
(i) enquiry into or
(ii) deciding any question arising for determination,
between the State Government and any person or between
parties to any proceedings.
[2J It is not enough to say that a particular officer shall be a
'Court' unless he possesses all the attributes of a Court.
[3] There have been cases in which the provisions of this section
have been examined by the High Court and the High Court
has decide that the Revenue Courts are Courts.
2. Revenue Courts are Courts.-! 1] The Revenue Courts do not
me within the purview of Tribunals on the standards laid
down by H court [AIR 1979 MP 21] and by the Supreme
Court in AIR 1969.
H gC 1335. A court is distinguished from quasi judicial Tribunal is
charged with a duty to decide disputes in a judicial manner and
H declare the rights of parties in a definitive judgment. To
decide in
J judicial manner involves that parties are entitled as a matter
of right to be heard in support of their claim and to adduce
evidence in proof 0f it. It imports an obligation on the part
of the authority to decide the matter on a consideration of
the evidence in accordance with law.
^ When a question, therefore, arises as to whether an authority
created by an Act is a court as distinguished from quasi
judicial tribunal, what !% has to be decided is whether having
regard to the provisions of the Act,
!
?| jt possesses all the attributes of a court. In this connection
the
 || decisions of the Supreme Court in Bralnandan Sinha v. Jyoti Naravan H [AIR_] 956 SC 661. Vlrindar Kumar v. The
State of Punjab fAIR 1956 SC I153] and G. Nageshara Rao v. A.P.S.R.T. Corpn. fAIR f559 SC 1531
^ may be referred. Looked in this background and having regard to the
|)g provisions of the M.P.Land Revenue Code, 1959 the only conclusion that can be drawn is that the revenue courts
possess all the attributes of a court and that they arg also conferred status of courts by virtue of Section 31 of the
Code.uuenerai MINES AND QUARRIES V. KARTAR SINGH, ^ 1992 RN 181 (HC). :

' 1c 31| HNthat2 the Board LAND

Si& [2] Section 31 of the M.P. Land Revenue Code, 1959, confers status Bin of Courts on the Revenue Board and the
Revenue Officers. It provides or the Revenue
REVENUE CODE.Officer,
1959 while exercising power under 1 this Code or
any other enactment for the time being in force to enquire
* into or to decide any question arising for determination between the it State Government and any person or between
parties to any proceedings, shall be a Revenue Court. Section 32 of the Code provides that nothing in this Code shall
be deemed to limit or otherwise affect the inherent power of the Revenue Court to make such orders as may be
necessary for the ends of justice or to prevent the abuse of the process of the Court. Section 33 of the Code states that
subject to the provisions of Section 132 and 133 of the Code of Civil Procedure, 1908, and to rules made under
Section 41, every Revenue Officer acting as a Revenue Court shall have power to take evidence, to summon any I
person whose attendance he considers necessary either to be ex- 1 amined as a party or to give evidence as a witness
or to produce any 1 document for the purposes of any inquiry or case arising under this Code or any other enactment
for the time being in force. Section 43 of the Code further provides that unless otherwise expressly provided in this
Code, the procedure laid down in the Code of Civil Procedure, I 1908 shall, so far as may be, be followed in all
proceedings under this | Code. Further on, we may note section 55 of the Code, which provides that for avoidance of
doubt it is hereby declared that save as otherwise I expressly provided in this Code, the provisions of this Chapter
shall apply to
(a) all orders passed by any Revenue Officer before the date of coming into force of this Code and
against which no appeal or
 revision proceedings are pending before such date;
and (b) all proceedings before Revenue Officers,
notwithstanding j ^ they were instituted or
commenced or arose out of Proceed?1*! instituted or
commenced before the coming into force 6fJl Code.
Thus, the said provisions not only constitute Revenue
OfficersH full-fledged Courts, which would be governed by the
special provisos of the M.P. Land Revenue Code, 1959, and in
the absence of I provisions, they are to be governed by the
Code of Civil ProcecW* 1908, if they do not come in conflict
with the former. DANGOJ^^ DESHRQJ, 1973 MPLJ 796=1973
JLJ 768 (HC)(DB).
[3] Stating the essential characteristics of a Court as distinguish^!
from a tribunal exercising quasi-judicial function, it has been
f
observe that what distinguishes a Court form a quasi-judicial
tribunal is tw' it is charged with a duly to decide disputes in a
judicial manner declare the rights of parties in a definitive
judgment. To decide bi- f judicial manner involves that parties
are entitled as a matter of risk ( to be heard in support of their
claim and to adduce evidence in pr<w I of it. And it also
imports an obligation on the part of the authority*! decide the
matter on a consideration of the evidence in accordant} with
law. When a question, therefore, arises as to whether an
authors] created by an Act is a Court as distinguished from
quasi-judiciai! Tribunal, what has to be decided is whether
having regard to the provisions of the Act, it possesses all the
attributes of a Court. Befoi* i it can be held that the
proceedings before an officer fall within secticjj 195(l)(b) of the
Code of Criminal Procedure, it must be shown not merely that
the proceedings are judicial in character but further that ! the
officer is acting as a Court in respect thereof. SHRI V.K.
SATYAIODL V. STATE OF PUNJAB, AIR 1956 SC 153.
[4] The word court has not been defined in this Code nor it Is I
defined ^in the General Clauses Act. Similarly, definition of
Court if section 3 of Evidence Act is not exhaustive; but is
framed only for the purposes of that Act and is not to be
extended where such an extension is not warranted.
It is however clear that in order to constitute a Court in the
strict L sense of the term an essential condition is that the
Court should have,! apart from having some of the trappings of
a judicial tribunal power give a decision or a definitive
judgment which has finality and authoritativeness which are
the essential tests of a judicial pronoiffl cement.
Coke Littleton and Stroud defined the word Court as the
pi30*; where justice is judicially administered. According to
Stephen, Jj every Court there must be at least three
constituent parts- the acW^ reus and judex; the actor or the
plaintiff, who complains of an done: reus, or defendant, who is
called upon to make satisfactiogjj it; and the judex or judicial
power, which is to examine the truth o* fact and to determine
the law arising upon that fact and if any WM appears to have
been done, to ascertain and by its officers to |pH the remedy.
 LAr
The pronouncement of a definitive judgment is, thus,
J
considered thetuessential sine qua non of a Court and
unless and until a binding nd authoritative judgment
can be pronouncedA- by a person or body of ersons it
cannot be predicted that he or they constitute a Court.
grajnandan Sinha v. Jyotinarayan, AIR 1956 SC
66=(1955) 2 SCR 955: See also Gulpalli Nageswarrao v.
State of Andhra Pradesh, AIR 1959 SC 308.
[5J A Revenue Court works according to thh law. The
Constitution provides for the rule of law, and the revenue
Courts have to work under }[, But because the jurisdiction
of the revenue Courts is limited and not so wide as that of
the civil Courts, and the purpose of the revenue Courts is
different, there is some difference in their procedure. The I
principles of natural justice fully apply to them. It is
necessary to follow
I the prescribed procedure and provisions of law, but there
should not be unnecessary delay. AIR 1957 SC 882 relied on.
1973 RN 591.
[6] Order passed by the Board of Revenue or any other Revenue
Officer either under the Code or any other enactment, it is an
order of the Revenue Court. 1988 RN 376.
[7] Revenue officers acting under the Code are revenue Courts,
principle of resjudicata under S. 11 CPC apply to such
proceedings.
2000JULIS*
[7] Order passed by Tahsildar under the Code. He acts as
Revenue Court under the section. He is protected under
Section 3 of the Judges (Protection) Act, 1985, he being
Judge under S.2 of the said Act. He cannot be prosecuted
and criminal complaint against him is liable to be
dismissed.^OMPRAKASH V. SWJANSINGH, 2004 RN 31 (HC).
3. Further procedure.- In a case initiated and order passed
before the coming into force of Code, further procedure
would be governed by the Code. The procedure prescribed
by the Code of Civil Procedure too applies. DANGALIA V.
DESHRQJ, 1973 MPLJ 796=1973 JLJ 768 (HC){DB).
4. Exclusion of time.- Time spent in proceedings before
revenue courts are to be excluded while computing
limitation for civil suit. GENERAL MINES AND QUARRIES V.
KARTAR SINGH, 1992 RN 181 (HC).
5. General.-! 1] It is clear by proviso to section 37 of the Code
that normally counsels fees cannot be awarded in revenue
cases or proceedings but if revenue officer feels necessary to
award such fees then he will have to give reasons in support
of his order, 1971 RN 70 relied on. 1984 RN 367.
 [2] The Board of Revenue is only a revenue Court. It cannot
consider the question that a particular land should be
settled on some person only; the administrative revenue
officers can consider this question. 1973 RN 589.
1. General interpretation.-! 1] The section is analogous to S.15]
of the Code of Civil Procedure, 1908.
[2] There are two situations in which inherent powers may
be used, I
(i) where the ends of justice require and (ii) where exercise of
power B becomes essential for preventing the abuse of the
process of the Court I
2. Requirement. -[ 1 ] Inherent powers can be exercised in that
case |I alone, which the court has jurisdiction to try and
decide. The court is WJ not entitled to usurp jurisdiction which
it has none under the garb of |w inherent powers.
[2] cases will always be there in which circumstances not covered
IJ by the provisions of this Code may arise requiring justice to
be done thereunder. Legislature can only foresee the most
natural and ordl- II nary events and no rule of any Code can
be made to regulate to all time to come and for all cases that
may happen. The section in a wayfj expresses what already
vests in the Code to be availed of by it to meet IP the ends of
justice where rules of procedure expressly provided do not W
meet the situation. The power is discretionary and in in
considering the question of propriety in invoking this
residuary power the Court II would take into account several
matters such as complexity of the 11 questions involved,
availability of a more complete and efficacious pfi remedy by
means of a suit and the apparent justice of the claim.
[3] The inherent powers of Court cannot be invoked to circumvent H
the mandatory provisions of the Code. AIR 1954 SC 349.
_______ THERE is no room for the application of inherent power
whert it
there is not only an express provision in the Code but also an
express provision negativing the claim of the party. The power
under section is intended to supplement other provisions of
the Code andojjaS to evade or ignore them or to invent a new
procedure accordingJ^H individual sentiment. BHOJRAJ V.
DASRU, AIR 1959 MP52=1958 361=1958 JLJ 397.
3. Situations where inherent powers may be exercised- There is no
provision under which an application may be mad making an
entry in the khasra regarding possession. But in*! interest of
justice such an order can be passed under inherent P0,* 1989
JLJ 706 & 1993 RN 277 (HC) Foil. 1995 RN 366 (Revenue)-
 J(2\ A Revenue Court has Inherent power to order restitution so
as to compensate a damage done to a party by its wrong
orders_which have been varied or reversed. DANGALIA V. DESHRQJ,
1973 JLJ 768=1973 MPLJ 796=1973 RN 373=1973 MPWR 505
(DB).
^3] Powers can be exercised where injustice has been done and
there is no express provision in the Code to give necessary relief.
BHARATSINGH V. KAMALSINGH, 1995 RN 32(Revenue).
[4] Interim order passed by trial court, revision filed against it. Trial
court passing final order. Revision against interim order allowed.
Trial court may exercise inherent power to restore position as it was
before passing of the interim order. Appellate Court should also
drop the appellate proceedings on receiving information about the
revisional order. RAJMANI V. AYODHYA, 1992 RN 157 (DB)(Revenue).
[5] Reconstruction of record can be made under inherent powers. 1989
RN 201.
[6] Court has inherent powers to rectify its own mistake but it has no
such power to rectify the mistake committed by another court.
Rajmani v. Ayodhya, 1992 RN 157 (DB)(Revenue).
[7] Inherent powers of the Court should be pressed into
service in I a case where wrong is done to a party by an
action of the Court. In fact 1 this is just the purpose for
which the provision in section 32 has been : made. 1965 RN
152.
4. Inherent powers when not to be used.-K) Where an appeal was barred
by time and there existed no sufficient ground for its late
j presentation, the appellate Court cannot set aside the order of the
lower Court under its inherent powers. The inherent powers are
conferred for being exercised for the ends of justice.
It is conferred with an intention to supplement other
provisions of the Code and not with an intention to ignore
any of them. Therefore, the powers cannot be exercised for
hearing of an appeal which is barred by time. GHASIRAM I V.
JAISRAM, 1969 JLJ SN 1.
(2) Powers under the section cannot be exercised in
respect of the j point which is not raised in the appeal, while
deciding stay application.
! 1988 RN 239.
(3) Earlier order of mutation cannot be reopened. 1988 RN 232 &
' 1988 RN 279.
(4) Land, part of a tank not in use. It can: xot be
declared to be \ cultivable by Additional Collector under
inherent powers. CHHANDILAL i MISHRA V. KESHAV PRASHAD,
1998 RN 28.
5. General.-! 1] Section 32 of the Code empowers a
revenue Court I to make such orders as may be necessary for
the ends of justice or to j| prevent the abuse of the process of
the Court. Though inherent powers I are vested in revenue
Court to pass prohibitory orders, these powers I have to be
exercised judicially and carefully. 1978 RN 304.
(2] Section 32 of the Code authorises a revenue officer
to invoke its i inherent powers for the ends of justice or to
 s. 32 N. 5 LAND REVENUE CODE, 1959 127
prevent the abuse of the | powers of the Court. When the
Tahsildar finds that an order affecting
I the rights of other persons was passed without notice to them in
33. Powers of Revenue Officers to require attendant of
persons and production of documents and to receive] evidenced
1) Subject to the provisions of section 132 and 133 of' the Code of
Civil Procedure, 1908 (V of 1908) and to rules made under section 41,
every Revenue Officer acting as a Revenigj Court shall have power to
take evidence, to summon any person! whose attendance he
considers necessary either to be examine|l as a party or to give
evidence as a witness or to produce any 1 document for the purposes
of any inquiry or case arising under ] this Code or any other
enactment for the time being in force. 9
(2) No person shall be ordered to attend in person, unless Be resides
(a) within the limits of the tahsil if the Revenue Officer! acting
as a Revenue Court is a Naib-Tahsildar and in I the case of
any other Revenue Officer, within the local I limits of his
jurisdiction; or
(b) without such limits but at a place less than fifty, or I where
there is a railway communication or other estab-1 lished
public conveyance for five-sixths of the distanGjja between
the place where he resides and the place where! he is
summoned to attend, less than two hundred mile|| distant
from such place.
(3) Any person present may be required by any such Revenqfl Officer to
give evidence or to produce any document then and 1 there in his
possession or power.
(4) Every such Revenue Officer shall have power to issue a j commission
to examine any person who is exempted from attend- j ing Court or
who cannot be ordered to attend in person or is I unable to attend on
account of sickness or infirmity.
COMMENTARY
1. General interpretation.-(1] The provisions of this section appty J
to every Revenue Officer who is acting as a Revenue Court. But
the 1 powers mentioned herein are subject to the provisions of
Ss.,132 a** I 133 of the Code of Civil Procedure and also to rules
made under S.**J of the Code.
(2) Sub-section (I) empowers the Revenue Officer to take
evideitfla or to summon any person either to give evidence or to
produce W I document which is necessary for deciding any case
either underjgg Code or any other enactment for the time being
in force.
I 34
i<?l sub-section (2) makes an exception for persons who
cannot be Pfjeitd to attend in person unless the circustances
mentioned therein are present.
\ f4l Sub-section (4) also empowers the Revenue Officer to issue
jpl Lesion for examination of a person who is/exempted from attend-
ASmonaUy. See ofeo 1969
topi 2. Provisions of CitfH Procedure Code.- Sections 132 and 133 of
% the Code of Civil Procedure are as under:
132. Exemption of certain women from personal ap- %jg
pearance.-(l) Women who, according to the customs and
manners of
 5% the country, ought not to be compelled to appear in public shall
be
Hjj/* exempt from personal appearance in Court.
(2) Nothing herein contained shall be deemed to exempt such women
from arrest in execution of civil process in any case in which the
arrest of women is not prohibited by this Code.
133. Exemption of other persons.-(l) The following persons
shall be entitled to exemption from personal appearance in Court,
namely:
I (i) the President of India;
(ii) the Vice-President of India;
(iii) the Speaker of the HOuse of the People;
(iv) the Ministers of the Union;
H (v) the Judges of the Supreme Court;
(vi) the Governors of States and administrators of Union ter-
ritories;
(vii) the Speakers of the State Legislative Assemblies;
(viii) the Chairmen of the State Legislative Councils;
(ix) the Ministers of States;
(x) the Judges of the High Court; and
(xi) the persons to whom Section 87B applies.
(2) [x x x]
? (3)Where any person claims the privilege of such exemption, and
ls
consequently necessary to examine him by commission, he
shall Pay the costs of that commission, unless the party requiring
his evidence pays such costs."
Further procedure.- In a case initiated and order passed
before
the r^n frce of Code, further procedure would be governed by &DD1I
Procedureprescribed by the Code of Civil Procedure too
(
NC)(DB) Dan9alia u
Deshrqj, 1973 MPLJ 796=1973 JLJ 768
may
(a) issue a bailable warrant of arrest;
(b) order him to furnish security for appearance; or ifl
(c) impose upon him a fine not exceeding rupees fifty I
35. Hearing in absence of party.-(1) If on the date fixed f I
hearing a case or proceeding, a Revenue Officer finds that 1
summons or notice was not served on any party due to the of the
opposite paurty to pay the requisite process fees for SuJl service, the
case or proceeding may be dismissed in default rff payment of such
process fees.
(2) If any party to a case or proceeding before a Revenup Officer does not
appear on the date fixed for hearing after due I service of a notice or
summons on him the case may be heard and determined in his
absence or may be dismissed in default, as the j case may be.
(3) The party against whom any order is passed under sub. I section (1)
or (2) may apply within thirty days from the dateotff such order or
knowledge of the order in case the notice or sum-M mons was not
duly served to have it set aside on the ground that f ! he was
prevented by any sufficient cause from paying the requi-p| site
process fees for service of a summons or notice on the S opposite
party or from appearing at the hearing and the Revenuffl Officer may,
 s. 32 N. 5 LAND REVENUE CODE, 1959 127
after notice to the opposite party which was presentW on the date on
which such order was passed and after makingil such inquiry as he
considers necessary, set aside the ordeffg passed.
(4) Where an application filed under sub-section (3) is|d rejected, the
party aggrieved may file an appeal to the authorial to whom an appeal
lies from an original order passed by suck* * officer.
(5) Except as provided in sub-section (4) or except whertM
case or proceeding before any Revenue Officer has been derid| 1 on
merits, no appeal shall lie from an order passed under th**| 5 section.
ifli
 17. Inherent powers.
1. General interpretation.-[1] The section provides a procedure
for the court to proceed when on the date fixed for hearing some
default is committed. The important fact is that there should be
a date fixed for hearing.
[2] Sub-section (1) applies where the Revenue Officer finds that on
the date fixed for hearing, summons or notice was not served
on any party due to the failure of the opposite party to pay the
requisite process fees for such service. It is one kind of default
and the penalty provided for such default is that the Revenue
Officer may dismiss the proceeding for such default. It may,
however, be noted that it is not Incumbent upon the officer to
dismiss the proceeding. It is discretionary and the officer, being
a Court, should act judiciously.
[3] Sub-section (2) provides for a contingency where any of the
parties does not appear on the date fixed for hearing. Here
again, there must a date fixed for hearing. As far as the non-
applicant is concerned, the sub-section applies where he does
not appear after due service of a notice or summons on him.
[4] The sub-section authorises the court either to dismiss the
proceeding for default of appearance or may be heard ex parte.
As far as hearing of a case ex parte is concerned, it can be done
where the non-applicant makes a default in appearance.
[5] Sub-section (3) makes provision for making an application to set
aside an order passed either under sub-section (1) or sub-
section
2).
(
16] A non-applicant against whom an exparte order is
passed may apply for setting aside the same on the ground (i)
that notice or summons was not duly served upon him or (ii)
that he was prevented by any sufficient cause from appearing
on the date of hearing.
IV] Where the proceedings are dismissed for default in
paying the process fees, the applicant has to allege and satisfy
the court that he was prevented by any sufficient cause from
paying the requisite process fees.
[8] Where the proceedings are dismissed for default in appearance
on the date of hearing, he has to make an application for
 134 LAND REVENUE CODE. 1959 S.35N. |!| I

restoring the same alleging therein that he was prevented by

any sufficient cause from appearing on such date.
[9] An application for setting aside the order passed either u ncje r
sub-section (1) or under sub-section (2) should be presented
withJ *$. thirty days of such order.
[10] Where the person concerned was not duly served with a noti^

tf
or summons, he has to file such an application within thirty
days of f
the knowledge of such an order.
F
# Ifl
[11] On receipt of an application for setting aside an order passed
i F either under sub-section (1) or sub-section (2) either from
the ap. $ plicant or from the non-applicant, the court has to
give notice of such I application to the opposite party.
[12] The court is required to make such enquiry as it thinks f <
necessary after going through the application and its reply. If
neces-1 I sary, the parties may be ordered to produce
evidence in support of the I allegations made in the
application or its reply.
[13] Sub-section (4) provides that an appeal shall lie against an 1
order of rejection passed on an application made under sub-
section I
(3) . An application under sub-section (3) is made either for
restoration , of proceedings which are dismissed for default or
for setting aside an *, exparty order. It therefore becomes
clear that rejection would mean K * rejection of any
application, whether made by the applicant or the { non-
applicant, appeal would lie.
[14] The sub-section also says that an appeal under sub-section
(4) would lie to the same court or Officer, before whom an
appeal lies against the order of the court which rejected th^
application.
[15] Sub-section (5) further says that no appeal, excepting that I
which is provided for in sub-section (4), would lie against any
order I :pgssed under this section. The only exception would
 be an appeal ! 1 which is filed against such order of the Court
which is passed on i merits.
1-A. Date of hearing.-[l] No ex parte order can be passed
on a date which was given by the reader. 1987 RN 290,
1989 RN 185 & 1992 RN ; 24 Relied on. RAMVILAS V.
SHIVNARAYAN, 1995 RN 225 (Revenue).
[2] Case fixed for hearing by the reader. It cannot be dismissed for
t default of appearance. Liberal view to be taken in restoration
matters. I Party should not be penalised for default of
counsel. 2000 RN 351.
[3] A date given by Superintendet of Commissioners office is not
a ; date given by the Court. 1989 RN 185.
[4] A person applied for being made a party in the appeal. His ;
application was rejected. He filed an application for review.
On the date fixed for arguments on this review application the
appellant was absent.
Held: The appeal could not be dismissed in default on
such date- The Court could decide the review application in
absence of the | appellants. 1975 RN 360.
[5] Where by the notice a date of hearing was fixed which was * ;
holiday, a fresh notice should be issued. The case cannot be |
exparte on the basis of such notice for a holiday. 1974 RN
442.
1-B. Effect of non-appearance.-[1] APPEAL DECIDED ON
MERITS IN ABSENCE OF APPELLANT-APPLICATION FOR RESTORATION DOES
NOT LIE- ONLY APPEAL AGAINST THE ORDER IS COMPETENT-LI a party to
a case or proceeding before the revenue officer does not appeal
on the date for hearing, the case may be heard and determined
in his absence or may be dismissed In default. If on the date
fixed for hearing the appellant does not appear, the revenue
officer has two options, i.e. either to hear and determine the
appeal in the absence of the party or dismiss the same , in
default. Under sub- section (4) where an application for
restoration of appeal dismissed in default is rejected, the party
aggrieved may file : an appeal to the authority to whom an
appeal lies from an original order passed by such an officer.
Under sub-section (5), except where \ a case or proceeding
 134 LAND REVENUE CODE. 1959 S.35N. |!| I

before any revenue officer has been decided on 1 merits, no

appeal shall lie from an order passed under this section.
Thus, application for restoration of an appeal can lie only
when the ti appeal is dismissed in default. Where the appellate
court exercises j option of hearing and determining the appeal
on merits in the absence I of appellant, the remedy of the
appellant lies in filing an appeal against i that order and an
application for restoration is not maintainable, j DHARAMSI BHAI
V. STATE OFM.P., 2004 (1) MPLJ 108 (DB).
[2] Hearing date and place.-Where case was fixed to be
heard at 5 Sagar for convenience of parties, the date of hearing
and its place I cannot be changed without proper notice to the
interested parties. Ex i parte order passed in such cases
should be set aside. RANI BAHU V.
I STATE OF M.P.,_2003.RN 24 (HC). ^
2. Dismissal for default.-[l] It is already stated above that there
may be a default in paying the process fess or a default in
appearing
* on the date of hearing. There may be serveral reasons why such
a I* default was committed. The provision is not new. It is
similar to the i one contained in the Code of Civil Procedure.
[2] Dismissal for default of appearance should not be done in early
ji hours of the day. Where application was made on the same
day, the
II case should be restored. RAMRAO V. NARAYAN, 1975 RN 84 (HC)
(DB).
[3] APPLICABILITY- Order of dismissal of an application cannot be |l
passed in respect of proceeding relating to registration of trust. VASANT F DIWAKAR V. REGISTRAR, PUBLIC
TRUST, 1979 (I) MPWN 137.
[4] Case should not be dismissed on default of the counsel. Notice
I to the party should be given again. A party cannot be held
guilty for ) the default of his counsel. According to the
principles of natural justice jj hearing opportunity should be
given. SUBHAN SHAH V. MOHD. NISAR,
 | 1995 RN 248 (Revenue).
J [5] It is painful that when an application filed before the
Additional Commissioner, that was dismissed by two lines
order passed on the I same application. He should have
enquired in respect of cause of I absence. So many times the
High Court and the Board of Revenue have I I?ac*e c^ear that if for
any reasons the counsel remains absent then the Court should
take the liberal view. In the instant case without
I ANY reasons, order passed by the Additional
Commissioner
legal. 1984 RN 43.
_______________________________________________________________
[6] Where the counsel for appellant refused to argue the apjw 9
unless his applications under section 29 and 32 of the Code
decided, the appellate Court was justified in dismissing the
appeal fM default. AIR 1963 SC 146 and 1966 RN 54 relied
on. 1977 RN 67. r !//
[7] In a case the junior counsel was present but he was rJfl
prepared to argue the case, saying that the senior counsel will
argy? H Under the circumstances, it cannot be said that the
party was absem H Case cannot be dismissed for default.
1963 RN-SN 87.
[8] It is not mandatory that in the absence of the party, inspite of V
notice, the proceedings should be dismissed in default or that
the pgs H should be proceeded ex parte. It is in the discretion
of the court and I w may even adjourn the case. 1968 RN 151.
[9] Date of hearing not fixedby presiding officer but by officer | I
charge. Appeal dismissed in default of appearances of both the
parties, H Dismissal not proper. Presence of opponent not
needed for restoration 11 of the case. BHAGWATI BAI V. NARAYAN
PRASAD, 2003 RN 88 (Revenue). I a
3. Exparte hearing.-[l] Provision is made in sub-section (2) for i|
hearing any case or proceeding ex party. It can be done in a
case where 11 the party, even after due service does not
appear on the date fixed for A6 hearing..
[2] Party remaining ex-parte in lower court- Need not be heard by
jW the Board. 2000 RN 272.
 134 LAND REVENUE CODE. 1959 S.35N. |!| I

[3] Counsel sending adjournment application and telegram, H

Presiding Officer out of headquarter. Next date fixed by reader.
No | exparte order can be passed on the basis that there was
notice of the 4 previous date. Must consider telegram and
application. 1988 RN 125. i|
[4] No ex party order.-Where the Advocate pleads no instructions, if
the party concerned should be informed accordingly. No ex
party order If should be passed straightway. PUNAM GARG V.
SARVAHAM a* G.N.S.SOCIETY, 2003 RN 310 (Revenue).
4. Sufficient reason for not paying process fees.-As stated; above,
where a case is dismissed for default under sub-section (1), in
I' the application for setting aside such an order, the applicant
has got TI to mention a sufficient reason for not paying process
fees. What would r j constitute sufficient reason is a question
of fact. Generally a court doesE not dismiss a suit on this type
of default unless it is convinced that the | plaintiff has no
intention to proceed with the suit and is abusing the | process
of court. It may happen in a case where temporary injunction
1 is obtained against the defendant, or some sort of stay is
obtained.
5. Sufficient reason for not appearing.-! 1] Sufficient cause ff |
restoration. Party could not attend due to several reasons for
which#! was helpless. Counsel busy elsewhere. See 1986 RN
402 & 31.
[2] Absence due to illness, supported by medical certificate a1"!
affidavit, restoration is proper. 1988 RN 263.
-^[3] Normally party should not be penalised for mistake of
counsel 1992 RN 24 (Revenue).- I
[4] Whether sufficient cause for default or non- appearaiv&*j&
appeal was dismissed for non-appearance. On the same day M
plication was filed for Its restoration saying that the
counsel could not appear because he was busy otherwise
in the High Court and the appellant himself was not well.
However, no medical certificate proving illness of the

I for P ^ k not mandatory to file an affidavit along with an

application 1 restoration of case. It may be dispensed with by
the Officer and no
 appellant was produced. The Board of Revenue did not find
any sufficient cause for non-appearance and rejected the
application for restoration. The High Court too, declined to
interfere in the matter. GIRDHARILAL PATEL V. BOARD OF
REVENUE, 1986 RN 216 (DB).
[5] The approach should be to do substantial justice and
not to act as Commander to maintain Military like
discipline. From the facts it is apparent that the
absence was not deliberate. The administrator had
taken all care and precaution in the matter of
appearance before the Board on behalf of the petitioner
society on the date of hearing as it was not possible for
him- of course for a genuine cause- in as much as he
had sent an intimation and authorisation letter to the
Ex-President.
If that man acted negligently, albeit the principal must
bear the consequences of the negligent act of his agent,
in the facts and circumstances of the case it would be
most unjustified to penalise the petitioner society. The
administrator could, while authorising not anticipate or
doubt that the Ex-President would act negligently and
not appear. In the matter of setting aside of an ex party
order and restoration a generous view has to be taken,
as the general rule is that dill lis should be decided in
presence of parties. In the instant case the
view taken by the Board is not only harsh but perverse.
The ad-
^ ministrator is a public officer. He has no personal interest,
why should
jj he be not believed and the Board has also in fact not
disbelieved him.
The High Court itself allowed the application for
setting aside the $ ex party order saying that there
was sufficient cause for non-ap-
... pearance and there is reason to remit the case to the Board
for a fresh
 134 LAND REVENUE CODE. 1959 S.35N. |!| I

decision. Pragatishil Railway Labour Co-operative

Society v. South Eastern Railway Labour Contract Co-
operative Society Ltd., 1984 RN | 210 (DB)(HC).
(6] For a case being restored after dismissal in default, there
should ji be a sufficient cause. The cause of absence should
be stated in the H application, and it should be sufficient in
view of the Court and not ail according to the notions of the
lawyer absenting himself on the date of / hearing. 1973 RN
24.
6. Enquiry and procedure.-! 1] The nature and extent of the
enquiry under section 35(3) of the Code have been left on
the discretion ia of the revenue officer. How much evidence
should be taken depends I uPn the circumstances of a case.
If a party files application for R restoration of the case on the
same day on which exparte order is 4 P^sed, it should be
considered liberally. 1974 RN 388. F 12) An
application for restoration cannot be dismissed without
| 8*ving an opportunity of hearing. 1988 RN 214.
| Case restored without giving notice ta opposite party.
No final
jer should be passed without such noticerSunilkumar
v. Daultiva H ^ 280(Revenue).
 142against whom LAND
[3] A party an exparte order1959
REVENUE CODE, has been passed, has a
right .to participate in further proceedings but has no right to
claim re-opening of the proceedings proceeded In his absence.
VASUDEV u, RAMCHANDRA, 1994 RN 100 (Revenue).
[4] Even where a party is absent, the Revenue Officers can pass
orders on merit. 1993 RN 37(Revenue).
[5] Section 30 of the Public Trust Act, makes the Civil Procedure
Code applicable to the proceedings under the Act, in so far as the
provisions of the Code are not inconsistent with anything
contained in the Act. The procedure provided in the Land
Revenue Code is not applicable to the proceedings under the Act.
The Sub- Divisional Officer and the Registrar both acted in excess
of jurisdiction in passing orders under section 35 (1) of the Land
Revenue Code. 1979 (I) MFWN 137.
17. Inherent powers.-A perusal of section 35(2) makes it clear
that if a party does not appear before the Court even after due
service of the notice, an order may be passed in its absence and
provisions are made under section 35(3) to file an application in
respect of such order. But if the notice is not duly served, no
exparte order can be passed. If such an order is passed, the Court
can set it aside under inherent powers and there is no bar of
limitation in such a case. 1973 RN 305.

36. Adjournment of hearing.-(l) A Revenue Officer may, I from time to

time, for reasons to be recorded and on such terms j as to costs,
adjourn the hearing of a case or proceeding before | him.
(2) The date and place of an adjourned hearing of a case or
proceeding shall be intimated at the time of the adjournment to 1
such of the parties and witnesses as are present.
37. Power to award costs.-A Revenue Officer may award I costs
incurred in any case or proceeding arising under this Code ' or
any other enactment for the time being in force in such manner I
and to such extent, as he thinks fit:
Provided that the fees of a legal practitioner shall not be |
allowed as costs in any such case or proceeding, unless such I
officer considers otherwise for reasons to be recorded by him in
writing. *
COMMENTARY
1. Awarding of costs.-[1] Provision is made in this section ESO' I
powering a Revenue Officer to award costs incurred in any case OF
I proceeding arising under this Code or any other enactment for
the tiioe a being in force.
(2) Such costs may be allowed at the discretion of the Revenue 1
Officer in the manner and to the extent which he thinks fit.
[3] The proviso to the section specifically excludes the fees of a legal
practitioner from the amount of costs to be awarded in any such
case or proceeding. Where the Revenue Officer allows such fees as
costs, he is required to record his reasons in writing as to why he
has done so. See also 1971 RN 70.
[4] In a case, where costs was neither claimed nor any reason for
awarding the same was given, it was held that the order awarding
 such142
costs was wholly unwarranted. HARDWARILAL
LAND REVENUE CODE, 1959 V. STATE OFM.P.,
1984 RN 1 (HC)(DB).
2. General.-! 1J The underlying theme of section 37 of the Code and
rule 25 appears to be that cost should be awarded only when the
revenue officer is satisfied that one or the other of the parties had
taken unnecessarily contentious attitude in the proceedings. The
triad Court is the best judge whether discretion should be
exercised in favour of awarding costs in a particular proceedings
under the Code.
Superior Courts should not ordinarily interfere with the
exercise of thisjudicial discretion. Superior Courts may only
entertain revision in cases where it is contended that excessive
costs have been awarded in contravention of the provisions of the
Act or rules. 1978 RN 131.
(2) The proceedings under section 248 were initiated by the
Government. The applicant had merely applied to be made a
party. He had indicated what interest he had in the proceedings.
He was made a party in the two appeals by the encroacher. In
these circumstances there was Justification to impose costs on
such party. 1975 RN 420.

38. Manner of executing order to deliver possession of immovable

property.-Where any person against whom an order to deliver
possession of immovable property has been passed under this
Code such order shall be executed in the following manner,
namely:
(a) by serving a notice on the person or persons in posses-
sion requiring them within such time as may appear
reasonable after receipt of the said notice to vacate the
land; and
(b) if such notice is not obeyed, by removing or deputing a
subordinate to remove any person who may refuse to
vacate the same; and
(c) if the officer removing any such person is resisted or
obstructed by any person, the Revenue Officer shall hold
a summary inquiry into the facts of the case, and if
satisfied that the resistance or obstruction was without
any just cause, and that such resistance or obstruction
still continues, may, without prejudice to any
proceedings to which such person may be liable under
any law for the time being in force for the punish-
a
f
ment of such resistance or obstruction, take or cause
f I be taken, such steps and use, or cause to be used,
sucj, [ force as may, in the opinion of such officer, be
reasonab. ly necessary for securing compliance with
the order. |
 142 CLAND
O MREVENUE
M E NCODE,
TAR Y
1959

SYNOPSIS
1. General interpretation.
2. Effect of inaction.
3. Due compliance.
4. Execution.
5. General.
1. General interpretation.-[1] The section provides the manner In I
which an order to deliver possession of Immovable property is' to
be executed. Such an order should have been passed under the J
provisions of this Code only.
12] The first step is to serve a notice on the person or persons in
possession of such property to deliver possession thereof within a
reasonable time.
131 The second step is by removing or deputing some
subordinate person to remove the person who has not obeyed the
notice and refuses to vacate the same.
(4] Where resistance or obstruction to removal is offered, the Revenue
Officer is empowered to make a summary inquiry into the matter
and if he finds that the resistance or removal was without any
just cause and the same still continues, he may take such steps
or use or cause to be used such force as he thinks to be
reasonably necessary for compliance of the order of eviction.
2. Effect of inaction.-Where an order of Tahsildar for restoration of
possession to the Bhumiswami is not complied with and the
possession of the other party continues, the effect would be that
such possession of the other party may ripen into adverse
possession after statutory period. Simply because there was an
order for restoration of possession, ripening of right as above
cannot be stopped. BALKRISHAN V. SATYAPRAKASH. 2001 RN
139=2001 (1) C.G.L.J. 315 (SC).
3. Due compliance.- Where it was noticed by the appellate Court
that the appellants avoided to attend, though summoned, and
remain present at the time of restoration of possession and
preparation of panchnama, it was held that the provisions of the
section were rightly complied with. CHHAGAN V. BHILASA, 1987 RN
230 (HC).
4. Execution.-A decree for possession of agricultural land capjj i
executed even if the crops are standing on the land. 1997 RN
1*
|HC)
' dj
5. General. [ 1 ] Order for restoration of possession cannot be
m|
without first giving show cause notice and a reasonable time
to vac* the land. 1987 RN 304. CZZT
(2] At the time of delivery of possession there was no crop ^
plalntiff-applicant standing on the suit land. Therefore the
delivfv
I possession cannot be regarded as illegal. The provisions of
section 38 I of the Code are not shown to have been contravened
in any manner I whatsoever by the non-applicants No. 1 and 2. If
the142 plaintiff thought I that the delivery
LAND REVENUE of possession was effected
CODE, 1959
in a manner contrary to I that enacted by section 38 of the Code,
he could have preferred an 1 appeal against the order of delivery of
possession. The plaintiff having I not done so, cannot be permitted
to challenge the proceedings on the I basis of supposed
contravention of the provisions of section 38 of the I Code. The
present case is within the general rule that CiVil Court also I
cannot sit over the order directing delivery of possession and the H
manner of execution of that order as an appellate revenue Court.
1979 | (H)MPWN6.
ill, ' ' ------------------------------ -----
;f 39. Persons by whom appearances and applications ! may be
made before and to Revenue Officers.-Save as jl otherwise
provided in any other enactment for the time being in force, all
appearances before, applications to and acts to be done 1 before
any Revenue Officer under this Code or any other enact- |J ment
for the time being in force may be made or done by the parties
themselves or by their recognised agents or by any legal j
practitioner:
40. Effects of rules in Schedule I.-The rules in Schedul
JBSI shall have effect as if enacted in the body of this
Code^i annulled or altered in accordance with the
provisions oftv*? Chapter. P
COMMENTARY
Application for setting aside sale- Computation of
limitation f Limitation for application to set aside should be
computed by exclul-S| ing the day on which the sale took
place. When the Court was c1o8^k|P| on thirtieth day, it
should be filed on the next opening day to be limitation.
Abdid Mubin v. Board, of Revenue, 1966 JLJ SN 5.

41. Power of Board to make rule.-(l) The Board may, from

time to time, make rules consistent with the
provisions of this f Code regulating the practice and
procedure of the Board and the procedure to be
allowed by other Revenue Courts and may by i such
rules annul, alter or add to all or any of the rule^iiif
Schedule I.
(2) In particular and without prejudice to the generality
of the| Powers conferred by sub-section (1), such
rules may provide fotj all or any of the following
matters, namely:
(a) the service of summons, notices and other
processes post or in any other manner
either generally or in any! specified areas, and
the proof of such service;
(b) the regulation of power of Revenue Officers to
summon! parties and witnesses and the grant
of expenses tot witnesses;
(c) the regulation of recognised agents with
regard to ap-fc pearances, applications and
acts done by them inf proceedings under this
Code;
(d) procedure to be observed in effecting
attachment movable and immovable
properties;
(e) procedure for publishing, conducting, setting
aside and | confirming sales and all ancillary
matters connectfi with.such proceedings;
(f) the maintenance and custody, while under
attaching
of live- stock and other movable property the
HJ payable for such maintenance and
custody, the such live-stock and property and
the proceeds of iaj sale; . .
S. 23 N. 1 LAND REVENUE CODE, 1959 149

(g) consolidation of appeals and other

proceedings*^
 (h) all forms, registers, books, entries and accounts which
may be necessary or desirable for the transaction of the
business of Revenue Courts;
(i) the time within which, in the absence of any express
provision, appeals or applications for revision may be
filed;
(j) the cost of and incidental to any proceedings;
(k) examination of witnesses on commission and payment
of expenses incidental to such examination;
(1) licensing of petition-writers and the regulation of their
conduct.
(3) Such rules shall be subject to the condition of previous
publication and approval of the State Government, and after
they are so made and approved they shall be published in the
Gazette, and shall, from the date of publication or from such
other date as may be specified, have the same force and effect
as if they were contained in Schedule I.
COMMENTARY
SYNOPSIS
1. General interpretation.
2. Transfer of case from one member to another.
3. Rules regarding Practice and Procedure of Board- Some cases.
4. Rules of Practice and Procedure of Revenue Officers- Some cases.
5. Rules for Service of Summons, etc.-Some cases.
6. Rules under the Schedule- Some cases.
7. Text of certain Rules:
[1] Rules Regarding the Practice and Procedure of the Board;
[2] Rules Regulating the Procedure to be Followed by
Revenue Courts.
[3] Rules Regarding Service of Summons, Notices and
Other Processes Summoning of Parties and
Witnesses, Recognised Agents, Consolidation of
Appeals and Other Proceedings etc.
[4] Rules Regarding Petition Writers.
[5] Board of Revenue Affidavit Rules.
1. General interpretation.-[1] The section empowers the Board to
make rules regulating the practice and procedure of the Board. It is
also empowered to make rules which should be followed by other
Revenue Courts.
[2] It is a condition precedent that the rules made by the Board
should be consistent with the provisions of this Code.
13] Under Section 40, the rules given in Schedule I have force similar to
that of any other provision enacted under this Code. But such rules
can be amended in the manner specified in this Chapter. Section 41
empowers the Board to annul, alter or add to all or any of the rules
in Schedule I.
[4] Sub-section (2) specifies the matters in respect of which rufe. M
referred to in sub-section (1) may be made by the Board.
[5] Any rules made by the Board shall be subject to previous w
publication, meaning thereby a draft of such rules shall first be * 1
published for inviting objections. Objections filed within the time
given, shall be considered by the Board and then approval of the
State I Government shall be obtained. After making of such rules
and obtain- I ing approval of the State Government, such rules shall
be published I in the Gazette. The rules so made shall come into
force on the date of | their publication in the Gazette or from any
other date if so specified, 1
[6] The rules so made by the Board, shall be deemed to be rules as if
enacted in the First Schedule of this Code.
[7] While exercising the powers under this section, the Board has 1
made (i) RULES REGARDING THE PRACTICE AND PROCEDURE OF
I THE BOARD, and (ii) RULES REGULATING THE PROCEDURE TO
BE FOLLOWED BY REVENUE COURTS, which are reproduced
hereinafter.
2. Transfer of case from one member to another.- The President f and
Members of the Board are equal in rank regarding exercise of j
judicial power. The President of the Board can exercise powers in the
I matter of allocation of work and distribution of cases but does not
have I power to transfer a case from the file of one Member to
another, a PANCHVATI SAH. G.N. SANSTHA V. GREEN PARK S. G.N.
SANSTHA, 1995 RN
4 (Revenue).
3. Rules regarding Practice and Procedure of Board- Some ' cases.
[1] Filing of Sales Tax Appeals.- Rule 5 clearly permits the filing I of any
appeal, application for review or revision or other application by g
presenting it in a place other than the head quarters of the Board in
I the District Office. An appeal under the Sales Tax Act may be filed
on I the District Head Quarters. MOHANSINGH V. BOARD OF REVENUE,
1963 I JLJ SN 92.
[2] Revision not filed before the lowest revisional authority. It g cannot
be dismissed but should be returned for presentation to the 1
proper court. 1993 RN 222(Revenue).
[31 Revision petition along with stay application. Stay application
| heard. Revision cannot be dismissed without providing an
opportunity 1 for hearing the revision. 1988 RN 213.
l4]The Board is a creation of the Code and hears appeals etc. not
only under the Code but also under various other enactments.
Whei | the enactments other than the Code have specific
provisions relating I to a particular procedure those provisions are
binding and have to be t followed. But where this is not so, the
Board shall have to draw upon t the procedure which is laid down in
the Code. HH
In exercise of the powers conferred by sub-section (1) of section
41 I of the Code, the Board has made rules for the practice and
proc^M I to be followed by. and before the Board, Rule 31 of the said
rul* I provides that if any party to a case or proceeding does not
a
PPea*j 1 the date fixed for hearing, the case may be heard and
determined