1. Atul Chand Mahato 2. Kailash Chandra Mahato 3. Prakash Chandra Mahato All sons v. 1. Sarbeshwar Mahato, son of late Jagtu Mahato, residents of Village Jerka, P.O. Kumardaga
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 423 of 2022 ---------- 1. Atul Chand Mahato 2. Kailash Chandra Mahato 3. Prakash Chandra Mahato All sons of late Ritbaran Mahato and residents of village Pokhanna Tola, Jerka, P.O. Kumardaga, P.S. Pindrajora, Chandankayari, Dist. Bokaro …. Petitioners/ Defendants Versus 1. Sarbeshwar Mahato, son of late Jagtu Mahato, residents of Village Jerka, P.O. Kumardaga, P.S. Pindrajora, Pokhanna Tola, Chandankayari, District Bokaro.
Legal Reasoning
“9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.” 5 10. In view of the facts and circumstances of the case as well as the observations made by this Court, the order dated 23.03.2022 passed by learned Civil Judge (Jr. Div.), Bokaro in Title Suit No. 01 of 1998, being not sustainable in the eyes of law, is hereby set aside. 11. The learned Court below is directed to accept the attendance of the petitioners-defendant Nos. 5(a) to 5(c) and proceed with the aforesaid Title Suit, in accordance with law. The anxiety of the plaintiff-respondent No. 1 that the defendant Nos. 5(a) to 5(c) are intentionally delaying the proceeding, shall be fulfilled if the learned Court below concludes the proceeding as expeditiously as possible and the parties are directed to co- operate in speedy disposal of the Title Suit. 12. Resultantly, the instant Civil Miscellaneous Petition stands allowed. kunal/- (Dr. S.N. Pathak, J.)
Arguments
2. Kali Charan Mahato, son of late Bouri Mahato. 3. Bijay Mahato, son of late Narayan Mahato. 4. Kartik Mahato, son of late Narayan Mahato. 5. Srimatya Kamli Devya, wife of late Narayan Mahato. 6. Mohan Mahato, son of late Bodhan Mahato. 7. Arjun Mahato, son of late Gahanu Mahato. 8. Nakul Mahato, son of late Gahanu Mahato. 9. Sahadev Mahato, son of late Gahanu Mahato. 10. Upendra Mahato, son of late Chandra Mahato. 11. Durga Charan Mahato, son of late Chandra Mahato. 12. Srimati Purnia Mahatein, daughter of late Ritbaran Mahato, wife of Balram Mahato. All residents of village Pokhana Tola, Jerka, P.O. Kumardaga, P.S. Pindrajora, Chandankayari, District Bokaro. …… Proforma Respondents/ Defendants CORAM: HON'BLE DR. JUSTICE S.N.PATHAK ---------- For the Petitioners ----------- : For the Respondents : Mr. Rohitashya Roy, Advocate Mr. Tarun Kumar, Advocate M/s. N.K. Sahani, Dimpy Halder, Shridhi Priya, Advocates 06/ 11.07.2023 Heard the parties. ---------- 2. This application has been preferred by the petitioners for setting aside the order dated 23.03.2022 passed by learned Civil Judge (Jr. Div.), Bokaro 2 in Title Suit No. 01 of 1998, by which the petition filed by the petitioners on 07.06.2019 for recalling the order dated 09.04.2019, was rejected. Further prayer has been made for recalling of the order dated 23.03.2022 and a direction to the learned Court below to proceed with the suit allowing the petitioners to contest the same. 3. Shorn of unnecessary details, a title suit No. 01 of 1998 was instituted by respondent No. 1 for declaration of his title over the property more-fully described in Schedule-II of the Plaint, recovery of possession and for decree of permanent injunction against the defendants. The said suit was decreed ex-parte against the defendants on 13.11.1998. The defendants, being aggrieved by the said ex-parte judgment and decree, preferred an application under Order-IX Rule 13 of the CPC, which was registered as Misc. Case No. 01 of 2004. The said application was allowed vide judgment dated 30.06.2012, setting aside the ex-parte judgment and decree dated 13.11.1998. 4. Thereafter, the proceeding in Title Suit No. 01/1998 commenced and the petitioners being defendant Nos. 5(a) to 5(c), appeared along with defendant Nos. 6 and 7 and filed their written statements on 16.10.2012, which was accepted by the learned Court below and the defendant Nos. 5(a) to 5(c) have regularly appeared in the suit. Ahough these petitioners [defendant Nos. 5(a) to 5(c)] were appearing day to day in the proceedings, the proceedings was set ex-parte against them on 09.04.2019. Thereafter, on 07.06.2019, a petition was filed by the petitioners for recalling the order dated 09.04.2019 by which the proceeding was set ex-parte against them. A rejoinder to the said petition was filed on behalf of the plaintiff contesting the said petition. Learned Court below, vide order dated 23.03.2022, rejected the petition filed by the petitioners-defendant Nos. 5(a) to 5(c) for recalling the order dated 09.04.2019. 5. By way of present Civil Misc. Petition, the petitioners have thrown challenge to the order of rejection dated 23.03.2022. 6. Mr. Rohitashya Roy, learned counsel appearing for the petitioners- defendant Nos. 5(a) to 5(c) vociferously argues that it is a fit case where 3 interference is warranted by this Court. From the records it is apparent that though the defendant Nos. 5(a) to 5(c) were in attendance but still the learned Court below proceeded holding them to be not present in the Court and passing the ex-parte order dated 18.03.2019. From perusal of the order- sheets of Title Suit No. 01 of 1998, it appears that on 18.03.2019, the plaintiff and defendant Nos. 5(a) to 5(C) are in attendance through lawyer. Thereafter, it was ordered to put-up this case on 09.04.2019. The order- sheet of 09.04.2019 shows that plaintiff and defendant Nos. 5(a) to 5(c) are in attendance but inspite of the same, learned Court below proceeded ex- parte against the defendant Nos. 5(a) to 5(c). This shows the callous approach of the learned Court below. 7. Learned counsel for the plaintiff-respondent submits that just to delay the case, the petitioners had filed an application under Order-IX Rule-7 of the CPC and the Court below had rightly observed that they were in habit of delaying the Title Suit. Therefore, for expediting the matter, it was kept for ex-parte hearing. Learned counsel submits that the Court below has rightly fixed the case for ex-parte hearing just to see that justice is not denied because of the procrastinating attitude of the defendant Nos. 5(a) to 5(c). 8. This Court after hearing the learned counsel for the petitioners- defendant Nos. 5(a) to 5(c) as well as plaintiff-respondent No. 1, is of the view that apparent error has been committed by the learned Court below. From the order-sheets brought on record, it appears that defendant Nos. 5(a) to 5(c) never intended to delay the proceedings since they were in attendance on each and every date of proceeding but because of the ex-parte order, rightly they were aggrieved and rightly petition for recall of the ex- parte order was filed by them. From the order-sheets, it appears that, only because the relevant provisions were not mentioned and the learned Court below observed that the said defendants were intending to delay the matter, the petition for recalling the ex-parte order was rejected. 9. The Hon’ble Apex Court in the case of P.K. Palanisamy Vs. N. Arumugham & Anr., reported in (2009) 9 SCC 173 has held as under: “27. Section 148 of the Code is a general provision and Section 149 thereof is special. The first application should have 4 been filed in terms of Section 149 of the Code. Once the court granted time for payment of deficit court fee within the period specified therefor, it would have been possible to extend the same by the court in exercise of its power under Section 148 of the Code. Only because a wrong provision was mentioned by the appellant, the same, in our opinion, by itself would not be a ground to hold that the application was not maintainable or that the order passed thereon would be a nullity. It is a well-settled principle of law that mentioning of a wrong provision or non- mentioning of a provision does not invalidate an order if the court and/or statutory authority had the requisite jurisdiction therefor. 28. In Ram Sunder Ram v. Union of India [(2007) 13 SCC 255 : (2008) 2 SCC (L&S) 603 : (2007) 9 Scale 197] it was held: (SCC pp. 260-61, para 19) “19. … It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 22 of the Army Act. ‘9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law.’ (See N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278] , SCC p. 280, para 9.) Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the learned counsel for the appellant.” 29. In N. Mani v. Sangeetha Theatre [(2004) 12 SCC 278] it is stated: (SCC p. 280, para 9)