Kanhaiya Pathak v. Raj Kishore Pandey & Ors.

All are teachers under the District-Superintendent of Education Buxar. ..Newly added defendants -respondents 3rd Set...Opposite Parties 4th set. ====================================================== Appearance : For the Petitioner/s : Mr. Nikesh Kumar For the Opposite Party/s : Mr. Dhruv Narain, Sr. Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 5 16-01-2013 Heard Mr. Nikesh Kumar, learned counsel appearing Patna High Court C.R. No.6 of 2011 (5) dt.16-01-2013 2 on behalf of the petitioner and Mr. Dhruv Narain, learned senior counsel appearing on behalf of opposite party no.1. This civil revision application is directed against the order dated 27.9.2010 passed in Miscellaneous Appeal No.6 of 2002, whereby the learned Additional District Judge, F.T.C. 1st, Buxar has been pleased to set aside the order dated 6.4.2001 passed in Title Suit No.82 of 1981 by the learned Munsif-II, Buxar dismissing the title suit as having abated. The facts of the case briefly stated is that the original plaintiff Baban Pandey who happened to be the Secretary of Jawahar Middle School, Nalband Toli, district Buxar had filed the suit in question seeking to declare the action of the officers of the Government of Bihar in its Education Department in taking over the school as illegal and without sanction of law. The original plaintiff deceased and substitution petitions were filed by defendant no.3, Jawahar Pandey who happened to be his brother and also a teacher the said school seeking transposition as plaintiff. A second application was filed by the opposite party no.1, Raj Kishore Pandey, who again happened to be the brother of the original plaintiff seeking impleadment in the suit under Order I, rule 10 of the Code of Civil Procedure (hereinafter referred to as ‘the Code’) and a third application Patna High Court C.R. No.6 of 2011 (5) dt.16-01-2013 3 was filed by the widow of the original plaintiff, namely, Girija Devi and some others. The substitution petition filed by Most. Girija Devi and others was not pressed and was rejected at the outset. The learned trial court while considering the other two applications in the light of the order passed by this Court in C.R. No.1945 of 1997 held the application for impleadment filed by opposite party no.1, Raj Kishore Pandey under Order I rule 10 of the Code as not maintainable. The learned trial court by the same order also did not find the prayer for transposition made by defendant no.3, Jawahar Pandey as plaintiff tenable on grounds that the suit was filed by the original plaintiff in the capacity of Secretary and thus rejected the same. Both the defendant no.3 Jawahar Pandey as well as Opposite Party no.1, Raj Kishore Pandey filed civil revision application before this Court which was subsequently converted into M.A. No. 540 of 2001. The said miscellaneous appeal was permitted to be withdrawn by order dated 1.7.2002 affording liberty to the appellants to raise their grievance before the appellate forum. Copy of the order is placed at Annexure-4 to the application. Following the order passed by this Court a miscellaneous appeal was preferred under the provisions of Order 43 rule 1(k) of the Code giving rise to M.A. No.6 of 2002. Patna High Court C.R. No.6 of 2011 (5) dt.16-01-2013 4 While the appeal was pending before the learned Additional District Judge, F.T.C. 1st, Buxar, the defendant no.3, Jawahar Pandey deceased and an application was filed for expunging his name from the records of the proceedings. The said application was allowed by the learned lower appellate court by order dated

3.8.2006. Copy of the application and the order passed thereon are placed at Annexure 6 and Annexure-7 respectively. The matter was thereafter heard by the learned lower appellate court on merits and has been disposed of by the impugned judgment and order dated 27.9.2010, whereby the learned lower appellate court while remitting the matter back to the learned trial court has issued a direction for transposition of defendant no.3 Jawahar Pandey in place of the plaintiff. The order impugned nowhere discusses the claim of opposite party no.1, Raj Kishore Pandey seeking impleadment in the suit under Order I rule 10 of the Code. It is stated at the bar by Mr. Nikesh Kumar, learned counsel for the petitioner that the learned trial court in course of compliance of the directions of the learned lower appellate court has proceeded to transpose Raj Kishore Pandey in place of the plaintiff, even when his application for impleadment under Order I rule 10 of the Code was not allowed by the learned Patna High Court C.R. No.6 of 2011 (5) dt.16-01-2013 5 lower appellate court. Mr. Nikesh Kumar has thus made a very short submission. It is submitted that the order of the learned lower appellate court is unsustainable when it directs transposition of a dead person, i.e. defendant no.3. He further submits that as there was no order allowing impleadment of opposite party no.1, Raj Kishore Pandey, the learned trial court could not have proceeded to transpose him as a plaintiff. With reference to the statement made in paragraph 15 of the plaint he submits that in any event in view of the statement made by the original plaintiff that Raj Kishore Pandey has no interest in the school, he could have been impleaded as plaintiff. Mr. Dhruv Narain, learned senior counsel appearing for opposite party no.1 despite his efforts, could not justify the fallacy occurring in the order impugned. I have heard learned counsel for the parties and have perused the materials on record. It is a matter of record that the prayer of opposite party no.1, Raj Kishore Pandey for impleading him in the suit was neither allowed by the learned trial court nor by the learned lower appellate court. In fact no relief was granted to opposite party no.1, Raj Kishore Pandey. Meaning thereby he is a stranger to the suit proceedings. The application for expunging the name of defendant no.3, Jawahar Patna High Court C.R. No.6 of 2011 (5) dt.16-01-2013 6 Pandey is present at Annexure-6 and an order to that effect dated

3.8.2006 is present at Annexure-7. Meaning thereby the name of defendant no.3, Jawahar Pandey stood expunged from the proceedings. In the circumstances the learned lower appellate court certainly could not have issued any direction for transposition of a dead person as a plaintiff even when he has ordered for expunging his name from the records of the proceedings by virtue of his death. The circumstances set forth amply explains that the order of the learned lower appellate court suffers from material irregularity and is not worthy of compliance. That no relief was granted to opposite party no.1, Raj Kishore Prasad on his application seeking impleadment, any order by the trial court directing his transposition as a plaintiff, would again be without sanction of law. For the reasons aforesaid the judgment and order under challenge cannot be upheld and is accordingly set aside. This civil revision application is allowed. SKPathak/- (Jyoti Saran, J)