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1987 DIGILAW 247 (PAT)

Prabhat Kumar Pandey v. Banwari Yadav

1987-08-07

BINOD KUMAR ROY

body1987
Judgment Binod Kumar Roy, J. 1. Since these cases were directed to be heard analogous and since common questions of law and facts are involved in them, they are being disposed of by this common judgment. 2. The aforementioned civil revision applications have been filed against the orders restoring different Rent Suits which were filed under the provisions of the Bihar Tenancy Act (hereinafter to be referred to as the Act). 3. The relevant facts are short and simple. All the Rent suits were decreed ex parte on 11.4.1979. The decrees were to put in execution. Even sales were held, effecting right, title and interest of the opposite parties. On 6th July, 1985 the opposite parties filed different applications under Order IX, Rule 13 of the Code of Civil Procedure (hereinafter to be referred to as the Code) for setting aside the ex parte decrees on the ground that summons were never served upon them. Evidence was led and by the impugned orders all the aforementioned Miscellaneous Cases were allowed and the respective suits were restored to their original files. 4. Mr. Bindeshwari Prasad Sinha, learned Counsel appearing for the petitioners in all the aforementioned cases submitted that the court below has committed a mistake in misreading the evidence and has also not applied its mind to Section 153A of the Act which lays down certain conditions which were not complied with. 5. Mr. Kumar Bahadur, learned Counsel appearing for the opposite parties, submits that necessary deposits were made after taking permission of the court below on 18.6.1986 in all the Miscellaneous Cases. He also showed me few copies of the challans dated 9th July, 1986 showing deposit of security money payment to orders dated 18.6.1986 in Miscellaneous Case Nos. 9, 10, 12 and 13 of 1985. He further submits that no illegality much on any jurisdictional error has been committed by the court below. 6. Sec. 153A of the Act runs as follows: 153A. 9, 10, 12 and 13 of 1985. He further submits that no illegality much on any jurisdictional error has been committed by the court below. 6. Sec. 153A of the Act runs as follows: 153A. Every application for an order under Rule 13 of Order IX of the Code of Civil Procedure, 1908 to set aside a decree passed ex parte, or for a review of judgment, under Sec. 114 and Rule 1 of Order XLV1I of the said Code, in a suit between a landlord and tenant as such, shall contain a statement of the injury sustained by the applicant by reason of the decree or judgment: and no such application shall be admitted- (a) unless the applicant has, at or before the time when the application is admitted, deposited in the court to which the application is presented the amount, if any, which he admits to be due from him to the decree-holder, or such amount as the court may, for reasons to be recorded by it in writing, direct; or (b) unless the court, after considering the statement of injury, is satisfied, for reasons to be recorded by it in writing, that no such deposit is necessary. 7. From a bare perusal of the aforementioned provision it is clear that a bar has been created before admitting an application for setting aside an ex parte decree or for a review of the judgment when the applicant admits the amount due from the decree-holder. 8. In Chandra Chur V/s. Bhola AIR 1921 Pat 284, it was held by this Court to the effect that where an application does not admit any rent due from the applicant he need not deposit any amount in court before applying under Order IX, Rule 13 of the Code for setting aside exparte decree. 9. In Paragraph 19 of the impugned order it has been held as follows: The learned Advocate for the opposite party submitted that the applications are not maintainable under Sec. 153A of the B.T. Act because the applicants have not deposited in court the amount which he admits to be due from him to the decree-holder. The learned Advocate for the applicants submitted that the applicants have not admitted any amount to be due from them to the decree-holder. Therefore, there is no question of deposit of any money along with the petition. The learned Advocate for the applicants submitted that the applicants have not admitted any amount to be due from them to the decree-holder. Therefore, there is no question of deposit of any money along with the petition. I find much force in his contention. Accordingly, I hold that the applications are maintainable. 10. From a perusal of Paragraph 7 of the revision petition, it appears that the question of non-deposit was not even raised in the rejoinder which the petitioners had filed. The petitioners have not even shown to me the applications filed by the opposite parties as also the rejoinders and thus I am not in a position to ascertain the correctness or otherwise of the last statement of Paragraph 9 of the revision petition in which it has been stated to the effect that there was no denial of the liability for rent nor was there any denial of Raiyat and Sikmidar between the decree-holder and judgment-debtor. In the affidavit attached with the Civil Revision applications, the deponent has made a statement that the contents of this (Revision) petition have been read and explained to me in Hindi and they are true to my knowledge and information which hardly fulfils the condition laid down in Order XIX, Rule 3 of the Code and thus difficult to be relied upon. It has also not been staled categorically anywhere in the revision petitions that the court below has committed an error of record in making observation while discussing this question in Paragraph 19 of its judgment. 11. In Prabhu Dayal Singh and Ors. V/s. Basudeo Singh and Ors. 1985 BBCJ 285 , it was laid down by a Division Bench of this Court that "A party is not entitled to raise the question of fact in a civil revision petition". It was also held therein that, "In a civil revision petition, Counsel for the petitioner can argue only about jurisdictional error." 12. In the instant case learned Counsel for the petitioners wants me to peruse the evidence and record a finding of fact that the opposite parties had knowledge. It was also held therein that, "In a civil revision petition, Counsel for the petitioner can argue only about jurisdictional error." 12. In the instant case learned Counsel for the petitioners wants me to peruse the evidence and record a finding of fact that the opposite parties had knowledge. In my view it would be beyond the domain of revisional jurisdiction to appraise evidence and record an independent finding of fact setting aside the finding recorded by the trial court that the applicants had no knowledge about the rent suits prior to the knowledge alleged by them in their applications and that accordingly, those applications where well within time and not barred by limitation. 13. All the suits having been restored to be disposed of on their merits, I am not inclined to exercise my discretion also. 14. In the result, these civil revision applications are without any merit and thus they are dismissed but in the circumstances without any cost.