Lakhisarai v. Nirmala Sharma W
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.14340 of 2012 ====================================================== 1. Vijay Kumar Gupta S/O Late Ramchandra Prasad Gupta, resident of Mohalla- Naya Bajar, Sri Ram Market, P.S.- Kabaiya, District- Lakhisarai 2. Vinay Kumar Gupta S/O Vijay Kumar Gupta, resident of Mohalla- Naya Bajar, Sri Ram Market, P.S.- Kabaiya, District- Lakhisarai Versus Nirmala Sharma W/O Shankar Prasad Sharma, resident of Mohalla- Naya Bazar Lakhisarai, P.S.- Kabaiya, District- Lakhisarai .... .... Petitioners .... .... Respondent ====================================================== Appearance : For the Petitioners : M/s Vijay Kumar and Ajay Kumar Singh, Advocates. For the Respondent : M/s Siddheshwari Prasad Singh, Sr. Advocate, Jashwir Singh Arora, Sr. Advocate & Manoj Kumar, Advocate. ====================================================== CORAM: HONOURABLE MR. JUSTICE NAVANITI PRASAD SINGH ORAL ORDER 8 30-10-2013 The present writ petition under Article 227 of the
Legal Reasoning
Constitution of India has been filed by the defendants in Eviction Suit No. 01 of 2011 and, in particular, against purported order dated 05.06.2012 passed by learned Subordinate Judge-II, Lakhisarai in the aforesaid suit. 2. By the aforesaid order, defendant-tenant-writ petitioners’ leave to defend the suit in terms of section 14(4) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 has been rejected and plaintiff-respondent’s application for proceeding in the suit in terms of Order VIII Rule 10 of the Code Patna High Court CWJC No.14340 of 2012 (8) dt.30-10-2013 2/6 of Civil Procedure ( for brevity `C.P.C.’) has been allowed.
Decision
3. The sole contesting respondent in the writ petition is the plaintiff, who has appeared and is represented. Heard learned counsel for the parties and with their consent, this writ petition is disposed of at this stage itself. 4. It appears that the plaintiff, who is the sole respondent in the present writ petition, had filed a suit for eviction on the ground of personal necessity. Allegedly notices were issued and validly served on the tenants, who were defendants and are writ petitioners herein. In spite of service of notices allegedly they chose not to seek leave to defend. Then the plaintiff filed an application that as more than a period of six months has elapsed and no application for leave to defend having been filed on behalf of tenant-defendants, the suit should proceed under Order VIII Rule 10 of the C.P.C. However, without seeking leave to defend the suit, written statement had been filed. It appears that tenant- defendants realizing their difficulty in the matter then filed an application for leave to defend. 5. According to defendant-writ petitioners, 05.06.2012 was the date fixed for hearing arguments. After arguments were heard, according to defendant-writ petitioners, the case was then adjourned to 18.06.2012 for orders. On 08.06.2012, the Presiding Patna High Court CWJC No.14340 of 2012 (8) dt.30-10-2013 3/6 Officer of the Court being Subordinate Judge-II, Lakhisarai suddenly expired. According to the writ petitioners, their Pairwikar then made enquiry as to what could happen to the case and the Court Master informed that as the Presiding Officer had died, necessary orders would be passed after instructions were received from the District Judge, but this was not to be because soon thereafter they learnt that their application for leave to defend and application of plaintiff-respondent were both disposed of. By a purported order dated 05.06.2012, defendant-petitioners’ application for leave to defend was rejected and plaintiff- respondent’s application for proceeding in the suit under Order VIII Rule 10 of the C.P.C. was allowed. 6. This was surprising; inasmuch as the Presiding Officer was dead and no order was to be passed on 05.06.2012. As noted above, the matter was heard and posted for orders on 18.06.2012. This is what brought the petitioners to this Court. The writ petitioners then immediately complained to the learned District Judge, Munger, as Lakhisarai falls within Munger Sessions Division. Learned District Judge, Munger, immediately asked the A.D.J.-I, Lakhisarai, to enquire into the matter and report. Thereafter, the matter was, accordingly, enquired into and a report submitted. Patna High Court CWJC No.14340 of 2012 (8) dt.30-10-2013 4/6 7. The writ petitioners have also then filed this writ petition pursuant to the orders passed earlier. In this writ petition, the District Judge was asked to report. The District Judge, Munger sent a cryptic report. He was then asked to look into the records and also look into the report earlier submitted by A.D.J.-I and then report. This time, the learned District Judge has sent his report vide memo no. 4968 dated 10.09.2013, which is on record. The District Judge, after examining the original records and the report of A.D.J.-I, Lakhisarai, has clearly given the following findings :- (i) The case was earlier taken up on 21.05.2012, wherein it is ordered “Attendances of both sides filed. To 05.06.2012 for filing reply”. (ii) From the court diary as maintained for 05.06.2012, it is written “Heard on reply petition. To 18.06.2012 for orders”. 8. Learned District Judge, accordingly, opined that taking the two things together, it was abundantly clear that on 05.06.2012, there was neither a date on which orders had to be passed nor orders could be passed. Learned District Judge further opined that even the order appears to be quite cryptic and without noticing relevant facts. 9. It may be noted here that the order is written in the order-sheet and scribed by the Court Master with only purported initial of the Judge. Accordingly, learned District Judge opined Patna High Court CWJC No.14340 of 2012 (8) dt.30-10-2013 5/6 that this order dated 05.06.2012 was, in fact, not an order correctly or validly passed and, in fact, it was not an order passed by the court at all. In other words, the stand of the writ petitioners stands fully vindicated. 10. Mr. J. S. Arora, learned senior counsel appearing on behalf of plaintiff-respondent submits that it cannot be said for certainty that it was not an order that was passed by the court concerned. 11. Having heard learned counsel for the parties, in my view, the report of the learned District Judge, Munger, is unassailable as he has taken note of facts. In that view of the matter, there is no escape from holding that the order being order dated 05.06.2012 as passed in Eviction Suit No. 01 of 2011 by Subordinate Judge-II, Lakhisarai, cannot be sustained in the eye of law and has to be set aside. The matter has to be remitted for hearing afresh on the petition seeking leave to defend by writ petitioners, who are defendants in the suit, as also on the petition filed by plaintiff-respondent praying that the suit must proceed in terms of Order VIII Rule 10 of the C.P.C. as the defendants had not sought leave to defend within time allowed. But before parting, I would direct the learned District Judge, Munger, to initiate an appropriate proceeding against the Court Master, who is Patna High Court CWJC No.14340 of 2012 (8) dt.30-10-2013 6/6 the custodian of the record in this regard and take appropriate disciplinary actions against him immediately in this regard before more damage is done to the institution and inform this Court about the actions taken at the earliest. 12. With the aforementioned observations and directions, this writ petition stands disposed of. (Navaniti Prasad Singh, J) MPS/-