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2000 DIGILAW 1113 (PNJ)

Joginder Dass v. Ram Tirath

2000-09-14

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - None has appeared on behalf of respondent No. 1. 2. Heard. This Civil Revision has been directed against the orders dated 23.4.1999 and 21.8.1999 passed by the Court of Civil Judge, Junior Division, Ludhiana (Shri R.L. Chauhan). 3. Some facts can be noticed in the following manner : Initially the suit was filed by Shri Ram Tirath alias Raghbir Singh against Shri Joginder Dass, Bhagwan Dass, Harpal Dass, Harjit Dass and Baljit Dass for declaration to the effect that the plaintiff is a Mahant of the Dera/Dharamshala in village Bhairo Munna, Tehsil and District Ludhiana, after the death of Mahant Niranjan Dass by way of special custom of natural inheritance. Ram Tirath also claimed possession of the land as Manager/Mohatmim. He prayed for permanent injunction. 4-5. Notice of the suit was given to the defendants. Shri Joginder Dass, the present petitioner, was proceeded ex parte and the suit was contested by defendants No. 2 to 5. The suit was instituted in the year 1989. Subsequently, defendant No. 1 Shri Joginder Dass filed an application Order 9 Rule 7 C.P.C. Here the controversy starts. 6. According to respondents No. 2 to 5 in fact the application under Order 9 Rule 7 C.P.C. was dismissed, whereas, according to the petitioner Shri Joginder Dass, it was allowed. So, the only point for controversy is whether the application was allowed or dismissed. 7. Learned counsel appearing on behalf of the petitioner invites my attention to the interim orders dated 23.4.1999 on which date the said application under Order 9 Rule 7 C.P.C. was disposed of. 8. The certified copy of the order dated 23.4.1999 has been placed on record which runs as follows :- "Present : Shri S.S. Cheema, Advocate, for plaintiff. Shri J.K. Mohindra, Advocate, for defendant. Arguments have been heard. Vide my separate order of even date an application for setting aside the ex parte proceedings has been allowed, but subject to cost of Rs. 2,000/- (two thousand) out of which Rs. 1,000/- (one thousand) will be paid by defendant No. 1 to the District Legal Services Authority, Ludhiana and Rs. 500 (five hundred) will be paid to his other co-defendants and Rs. 500/- (five hundred) will be paid to the plaintiff. The file to come up on 7.5.1999 for filing written statement and reply to the stay application." Announced. 23.4.1999. Sd/- CJ (JD) 23.4.1999." 9. 500 (five hundred) will be paid to his other co-defendants and Rs. 500/- (five hundred) will be paid to the plaintiff. The file to come up on 7.5.1999 for filing written statement and reply to the stay application." Announced. 23.4.1999. Sd/- CJ (JD) 23.4.1999." 9. Attention has also been invited to the orders dated 7.5.1999, 2.6.1999. 7.6.1999 and 29.7.1999. The crux of these orders is that at one point of time defendant No. 1 made a prayer for the extension of time in order to pay the costs. This request was granted on 7.5.1999 for the first time and this request was again allowed on 2.6.1999. The costs were actually paid on 7.6.1999. So much so written statement of defendant No. 1 was taken on record. The copy was supplied to the counsel opposite who was permitted to file the rejoinder. 10. The above all orders would show that the application moved by defendant No. 1 under Order 9 Rule 7 C.P.C. was allowed by the Court but when the petitioner got the certified copy of the detailed order dated 23.4.1999 he came to know that the learned Civil Judge, in fact, had written the order dismissing his application. Naturally, it gave a surprise to the petitioner who filed an application under Section 151 read with Section 152 C.P.C. and this application was resisted by the co-defendants. Plaintiff, however, said that he has no objection in allowing of the application. The learned Civil Judge, vide order dated 21.8.1999, dismissed the application under Section 151 read with Section 152 C.P.C. and in this manner, the present revision has been preferred. 11. The point again will arise for determination whether the order dated 21.8.1999 is within the jurisdiction of the Court or it is without jurisdiction because Section 152 only allows arithmetical mistakes to be corrected. 12. The learned counsel appearing on behalf of respondents No. 2 to 5 vehemently submitted that on 23.4.1999 the application under Order 9 Rule 7 C.P.C. for setting aside the ex parte order was dismissed and on account of inadvertence the short order has been written in an incorrect manner. He submitted that the detailed order dated 23.4.1999 clearly indicates that for the valid reasons given therein the application under Order 9 Rule 7 C.P.C. has been dismissed because defendant No. 1 was duly served. He submitted that the detailed order dated 23.4.1999 clearly indicates that for the valid reasons given therein the application under Order 9 Rule 7 C.P.C. has been dismissed because defendant No. 1 was duly served. He moved an application after a lapse of years together and the Court in fact had no option but to dismiss the application and the same was dismissed by a detailed order. The submission of the learned counsel for respondents No. 2 to 5 cannot be accepted for the simple reason that in the short order dated 23.4.1999 the learned Sub Judge, while allowing the application, called upon defendant No. 1 to file written statement and reply to the stay application of the plaintiff. Assuming for the sake of argument that the short order was incorrectly typed out by the counsel for the parties that on 23.4.1999 the application under Order 9 Rule 7 C.P.C. in fact was dismissed. Nothing has been done so far. 13. Prima facie, it appears that the learned Civil Judge had acted with great irresponsibility not becoming of a judicial officer to write contradictory orders. It is a very serious lapse which was committed on the part of a Judicial Officer. The costs were accepted clearly indicating that the learned Sub Judge allowed the application under Order 9 Rule 7 C.P.C. 14. In these circumstances, the detailed order dated 23.4.1999 was in fact a nullity and it was not required even to be amended. Defendant No. 1 could always ignore that order and had the right to participate in the proceedings. The learned Civil Judge in his jealousness has disallowed the application under Section 151 read with Section 152 C.P.C. perhaps with the intention that he wanted to justify his illegal order dated 23.4.1999 when he wrote a detailed order highlighting the rejection of the application. 15. In this view of the matter, I allow this revision, set aside the impugned orders and allow the defendant No. 1 to participate in the proceedings. Let copy of this order be sent to the learned Civil Judge (Shri R.L. Chauhan), wherever, the is posted for information and necessary action. Revision allowed.