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Fazal Rasul Vs. the Collector of Agra - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1919All307(2); 50Ind.Cas.70
AppellantFazal Rasul
RespondentThe Collector of Agra
Excerpt:
land acquisition act (i of 1894), section 45 - notice, service of, manner of--'cannot be found', temporary absence, whether amounts to. - 1. this appeal arises out of an application made in a land acquisition case. it appears that there was no appearance on behalf of the present appellant, who was an objector in the land acquisition reference, and the case was accordingly dismissed for default. an application was made for restoration of the case. the learned district judge refused to restore the case on the ground that the general attorney of the applicant had been served with the notice. the general attorney swore an affidavit to say that he was also the servant of another man and that after he got the notice he was busily engaged in collecting rents for the payment of government revenue. it also appears that the appellant was absent from his home at the time the notice was served. the notice was a notice required to be.....
Judgment:

1. This appeal arises out of an application made in a land acquisition case. It appears that there was no appearance on behalf of the present appellant, who was an objector in the land acquisition reference, and the case was accordingly dismissed for default. An application was made for restoration of the case. The learned District Judge refused to restore the case on the ground that the general attorney of the applicant had been served with the notice. The general attorney swore an affidavit to say that he was also the servant of another man and that after he got the notice he was busily engaged in collecting rents for the payment of Government revenue. It also appears that the appellant was absent from his home at the time the notice was served. The notice was a notice required to be served having regard to the provisions of the Land Acquisition Act. Section 45 provides that all notices under the Act should be served by delivering or tendering; wherever practicable such service should be made on the person named in the notice. Sub-clause (3) states that when such person cannot be found, the service may be made in another way. It seems to us that if Fazal Rasul was temporarily absent from his house, it cannot be said that he 'could not be found' within the meaning of that expression in Clause (3). It, therefore, appears that the service was not technically correct. In addition to this it would seem that there was a reasonable cause for his absence. Under all the circumstances we think that the case should be restored. We accordingly allow the appeal, set aside the order of the Court below and remand the case with directions to re-admit the reference in its original number in the file and proceed to hear and determine the same according to Jaw. We make no order as to costs. Mr. Ryves says he has no instructions to oppose the appeal.


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