Pradeep Chandra Sinha v. Prem Chandra Singh

Patna High Court CWJC No.18652 of 2011 (5) dt.04-12-2012 2 For the Petitioner/s : Mr. Radha Mohan Pandey For the Respondent/s : Mr. Jaishankar Barnwal, SC 1 ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

05. 04-12-2012 Heard Mr. Radha Mohan Pandey, learned counsel appearing on behalf of the petitioners and Ms. Nutan Sahai, Assisting Counsel to SC 1 for the State. By order dated 09.11.2011 notice had been issued to respondent no. 13 in the Admission matter. Though served the respondent no. 13 has not chosen to appear. The petitioners are aggrieved by the order dated 10.08.2011 passed by learned Sub Judge-4th, Bhojpur at Ara in Title Suit No. 128 of 1996, whereby the learned court below while entertaining the application filed by the defendant-respondent no. 13 under order 39 Rule 1 and 2 of the Code of Civil Procedure read with Section 151 thereof has been pleased to direct the parties to maintain status quo until filing of the show cause. Facts of the case in brief is that a suit was filed by the State of Bihar as against the petitioners and other defendants seeking a declaration that the suit land do not belong to the defendants and the plaintiff, the State of Bihar is the real owner of the suit land. While the matter was pending consideration an application was filed on 03.12.2008 by the State under Order 23 Rule 1 of the Patna High Court CWJC No.18652 of 2011 (5) dt.04-12-2012 3 Code of Civil Procedure seeking permission of withdrawal of the suit. A separate application was filed by the defendant 4th set i.e. respondent no. 13 herein for transposing him as plaintiff under the provisions of Order 23 Rule 1A. The trial court while considering both the applications while allowing the withdrawal application filed by the plaintiff has dismissed the application filed by the defendant 4th set/respondent no. 13 for transposing him as a plaintiff by order dated 13.08.2009 (Annexure-1). The respondent no. 13 being aggrieved filed a Civil Revision application in this Court which was subsequently converted in an application under Article 227 of the Constitution of India and renumbered as CWJC No. 18805 of 2010. The petitioners contend that a caveat under the provisions of Section 148(A) of the Code was filed by the petitioners but the same never got attached and thus the petitioners were precluded from contesting the prayer of the respondent no. 13 in the said writ application. A Bench of this Court by order dated 09.05.2011 while remitting the matter directed the trial court to consider the application filed by the respondent no. 13 for transposing him as a plaintiff in accordance with law. Pursuant to the order passed in the writ application the respondent no. 13 filed an application under Order 39 Rule 1 and 2 of the Code of Civil Procedure read with Section 151 thereof and Patna High Court CWJC No.18652 of 2011 (5) dt.04-12-2012 4 the learned trial court upon considering the prayer made therein while issuing notice to the parties on the application, directed the parties to maintain status quo by order dated 10.08.2011. The petitioners on becoming aware of the order passed in CWJC No. 18805 of 2010 filed a Civil Review No. 299 of 2011 for recall of the order disposing of the writ application and for disposal after hearing the parties. By order passed on 16.11.2011, Civil Review No. 299 of 2011 was allowed and CWJC No. 18805 of 2010 was restored to its original file. CWJC No. 18805 of 2010 was subsequently heard and disposed of by order dated 22.08.2012 with a direction to the trial court to hear the matter of withdrawal as well as the application of the respondent no. 13 for transposing him as plaintiff, afresh after giving a fresh opportunity of hearing to the parties and until such time the order dated 13.08.2009 whereby the withdrawal application was allowed and transposition of respondent no. 13 was rejected, was to be kept in abeyance. Mr. Pandey, learned counsel for the petitioners has submitted that the order of maintenance of status quo was passed by the learned court below even before the records which stood consigned under the order dated 13.08.2009, could be received by the trial court. With reference to an order of the Trial Court dated Patna High Court CWJC No.18652 of 2011 (5) dt.04-12-2012 5

05.07.2011 it is stated that although in view of the order dated

09.05.2011 passed in CWJC No. 18805 of 2010, the matter had been posted for consideration on 21.09.2011 with a direction to place the original records but the learned court below by preponing the date fixed in the case and even in absence of the record, has proceeded to pass the order impugned and which is not sustainable. As already mentioned at the outset though served respondent no. 13 has not chosen to appear. I have heard learned counsel for the parties and have perused the materials on record. A bare perusal of the order dated

10.08.2011 which is impugned the present proceedings manifests that the said order was passed in the light of the order dated 09.05.2011 passed by this Court in CWJC No. 18805 of

2010. By the said order the trial court while issuing notice had directed the parties to maintain status quo and which direction was extended by the order dated 02.09.2011. The order was passed in view of the order dated 09.05.2011 passed in CWJC No. 18805 of 2010 which order itself stood recalled by the order dated

16.11.2011 passed in Civil Review No. 299 of 2011. The learned trial court would thus have to consider the application filed by the defendant 4th set, Kamal Singh, afresh in the light of the order Patna High Court CWJC No.18652 of 2011 (5) dt.04-12-2012 6 disposing of the writ application dated 22.08.2012 after giving due opportunity to the parties. It also does not stand to reason that when the trial court had directed for production of records by order dated 05.07.2011 while posting the matter for consideration on 21.09.2011, under what circumstances the date of hearing was preponed on 10.08.2011. For the reason aforesaid, the order dated 10.08.2011 cannot be upheld and is accordingly set aside. The matter is remitted back to the trial court to consider the application filed by the defendant 4th set-respondent no. 13, namely, Kamal Singh filed under Order 39 Rule 1 and 2 of the Code of Civil Procedure read with Section 151 thereof afresh and dispose of the same in accordance with law after giving due opportunity of hearing to the contesting parties. This application is accordingly allowed but without order as to costs. S.Sb/- (Jyoti Saran, J)