Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Revision No.181 of 2012 ====================================================== Kameshwar Prasad Singh son of late Rajendra Prasad Singh resident of Mohalla Gami tola, P.S/PO and district Katihar (defendant 2nd party) .... .... Petitioner/s Versus 1. Mukesh Kumar Jhunjhunwala alleged adopted son of sole plaintiff namely Most Jamuna Devi, Jhunjunwal wife of late Mohan Lal Jhunjhunwala resident of Bara bajar Ward No. 17, P.S and district Katihar 2. Banarsi Singh @ Banarsi Prasad Singh son of late Anandi Prasad singh, resident of Durgapur Gowshala, P.S. and district Katihar .... .... Opposite Parties ====================================================== Appearance : For the Petitioner/s : Mr. Madhav Roy, Adv. Mr. Rama Nand Poddar, Adv. For the Respondent/s : ……………... ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 5 31-01-2013 I.A.No.6795 of 2012 This application under Section 5 of the Limitation Act has been filed praying for condonation of delay in filing the civil revision application which is stated to have been filed after a delay of 8 days. It is stated that as the petitioner was indisposed hence he was not able to file the application within limitation period.
Legal Reasoning
Having heard learned counsel for the petitioner and having considered the submissions made in the interlocutory application, the delay in filing the civil revision application is condoned. This interlocutory application stands allowed. 2 Patna High Court C.R. No.181 of 2012 (5) dt.31-01-2013 2 / 5 C.R.No.181 of 2012 Heard Mr. Madhav Roy, learned counsel for the petitioner. This civil revision application is directed against the order dated 24.4.2012 passed by learned Sub Judge-III, Katihar in Title Suit No. 61 of 1988 whereby the learned Court below has been pleased to allow the substitution filed by the opposite party No.1 in place of the original plaintiff. An issue of maintainability as well as limitation in the present proceedings has been raised by the office. By order passed on 11.10.2012 the issue of maintainability was directed to be considered at the stage of admission. By a subsequent order dated 16.10.2012 the limitation petition was also directed to be placed at the stage of admission. In so far as the issue of maintainability is concerned, as an order in favour of the petitioner objecting the substitution of the opposite party No.1 would have resulted in disposal of the suit itself in absence of any plaintiff, the civil revision application is held maintainable in terms of the provisions of Section 115 of the Code of Civil Procedure(hereinafter referred to as the ‘Code’). The limitation has already been condoned by this Court. The suit in question was filed for declaration that the sale deed dated 8.8.1986 has not conferred any title or interest in 3 Patna High Court C.R. No.181 of 2012 (5) dt.31-01-2013 3 / 5 favour of the vendee-defendant No.1 and prayer was made for cancellation of the said sale deed with a further prayer of permanent injunction against the said vendee-defendant. During the pendency of the suit the original plaintiff deceased and an application for substitution was filed by the opposite party No.1 on 18.6.2010 praying for substitution in place of the original plaintiff claiming to be her adopted son relying upon a registered deed of adoption, copy whereof has been placed at Annexure-4 to this application. The learned Court below by the order impugned while considering the substitution petition filed by the opposite party No.1 and the objection raised by the defendants including the present petitioner, as also upon examination of the materials on record, has been pleased to allow the substitution and hence the present application. Mr. Madhav Roy, learned counsel for the petitioner has questioned the impugned order on two grounds namely; (1) The learned Court below despite the objection being raised by the defendants as regarding the genuineness of the adoption deed has accepted the same without holding any enquiry as envisaged under the provisions of Order 22 Rule 5 of the Code. (2) As the suit stood dismissed for default and the order 4 Patna High Court C.R. No.181 of 2012 (5) dt.31-01-2013 4 / 5 passed in the miscellaneous application restoring the suit subject to payment of cost had not been carried out meaning thereby the suit was yet to be restored, the application in question would not have been filed by the petitioner on 18.6.2010 in a dead suit. The objection filed by the petitioner before the Court below on the substitution is placed on record at Annexure-3. I have heard learned counsel for the petitioner and have perused the materials on record. In so far as the veracity of the adoption deed is concerned which is a registered deed, neither any document was placed before the Court below to question the same nor it is before this Court and thus there is no reason for this Court to express any opinion on the genuineness of the said document. Even otherwise, it is by now well settled that there is a presumption of correctness in a registered deed until it is set aside by a competent Court of law. The registered deed is the basis for the learned Court below to have allowed the substitution thus no legal infirmity can be found in the same. The second ground raised by Mr. Madhav Roy is that the substitution petition was filed in a dead suit and the same was yet to be restored. The substitution petition may have been filed when 5 Patna High Court C.R. No.181 of 2012 (5) dt.31-01-2013 5 / 5 the suit was yet to be restored but there is no contest that the consideration thereof is at a stage when the suit stood restored and thus the petitioner cannot question the impugned order on this hyper technicality. For the reasons aforesaid, this Court does not find any infirmity or material irregularity in the order impugned warranting
Decision
interference and this application is accordingly, disposed of. It goes without saying that the observation hereinabove would not preclude the petitioner to question the deed before an appropriate forum by filing an appropriate application. Bibhash/- (Jyoti Saran, J)