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2002 DIGILAW 121 (PAT)

Anil Kumar v. Vijay Devi

2002-01-25

S.K.KATRIAR

body2002
Judgment S.K.Katriar, J. 1. This application under Order 47 C.P.C has been filed for review of the judgment dated 17-7-1997, passed by a learned single Judge of this Court in MJC No. 746 of 1992(Smt. Vijay Devi V/s. S.NP. Srivastava and Ors.), whereby Title (Partition) Suit No. 151 of 1991 (Radha Prasad V/s. Kapildeo Narain and Ors.) was directed to be transferred from the Court of learned Sub-ordinate Judge-IV, Siwan, to the Civil Court, Patna, to be tried by a Court of competent jurisdiction to be assigned by the learned District Judge, Patna. 2. The suit had been instituted by Radha Prasad (deceased) for partition of the suit property. Smt Vijay Devi, wife of the said Kapildeo Narain, is one of the defendants in the suit who filed the said MJC No. 746 of 1992 in this Court under sec. 24 read with sec. 151 CPC to transfer the same from the Siwan Court to Patna Court, inter alia, on the ground that Radha Prasad, the plaintiff, was a leading lawyer at Siwan and, therefore, lawyers of the choice of Smt. Vijay Devi were not willing to accept her brief against him. The transfer was also sought on the ground that one Parimal Kumar (defendant No. 7), a lawyer at Siwan and a member of the Vigilance Committee of the Civil Court has considerable influence in the Bar Association as a result of which she (Smt. Vijay Devi) had not been able to engage a lawyer of her choice. Notices had been issued to all the opposite parties who entered appearance through their Counsel. As stated hereinabove, the same was allowed by this Court by a learned single Judge of this Court by judgment dated 17-7-1997, and the suit has been transferred to the Patna Civil Court. 3. The suit is now in the Court of the learned Sub-ordinate Judge IVth Court, Patna, but does not seem to have made any progress. Petitioner No. 1 (Anil Kumar), petitioner No. 2 (Sunil Kumar), petitioner No. 3 (Dr. Rita Dayal) and petitioner No. 4 (Smt. Sunita Narain) of the present case were opposite party Nos. 4, 5, 7 and 8 respectively in M JC No. 746 of 1997. Petitioner No. 1 (Anil Kumar), petitioner No. 2 (Sunil Kumar), petitioner No. 3 (Dr. Rita Dayal) and petitioner No. 4 (Smt. Sunita Narain) of the present case were opposite party Nos. 4, 5, 7 and 8 respectively in M JC No. 746 of 1997. These four petitioners have preferred the present application under Order 47 CPC, seeking recall of the said judgment dated 17-7-1997, and for the further direction to re-transfer Title (Partition) Suit No. 151 of 1991 to the Siwan Court. During the pendency of the present application, Prabhat Kumar Srivastava, son of the said Radha Prasad (deceased) preferred MJC No. 2099 of 1998 in this Court under Section 24(1)(b)(iii) CPC, seeking retransfer of the suit from the Patna Civil Court to the Siwan Court. The same was dismissed for non-prosecution on 13-9-1999. I am informed by the learned Counsel for the petitioners in the present case that MJC No. 1628 of 2000 is pending in this Court for restoration of the said MJC No. 2099 of 1998. 4. I have heard learned Counsel for the petitioners at length at the stage of admission itself. He submits that he is mindful of the limited scope of a review application under Order XLVII, CPC and the present application, strictly speaking, is beyond the scope of Order XLVII, CPC. However, there are circumstances appearing on the face of the record as well as the judgment of MJC No. 746 of 1992 that the judgment dated 17-7-1997 is based on non-est grounds. The most important ground for transfer of the suit from Siwan was the presence of Mr. Radha Prasad, a leading Counsel of Siwan Bar, whereas the correct position is that he had already died on 10-8-1993 and his influence had come to an end on the date of the judgment. He further submits that the second reason for transfer of the suit was that Parimal Kumar (defendant No. 7) was a member of the Vigilance Committee of Civil Court at Siwan, but he had ceased to be a member of the Vigilance Committee on 30-1 -1993. He lastly submits that MJC No. 1628 of 2000, filed by the present petitioners for restoration of MJC No. 2099 of 1998, is still pending in this Court and the present matter may be heard along with the same. 5. Notices have not been issued to the opposite parties. He lastly submits that MJC No. 1628 of 2000, filed by the present petitioners for restoration of MJC No. 2099 of 1998, is still pending in this Court and the present matter may be heard along with the same. 5. Notices have not been issued to the opposite parties. However, O.P. No. 1 (Smt. Vijay Devi) has entered appearance and is represented by Mr. K.N. Choubey, who opposes this application. O.P. Nos. 2 to 12, (namely, Dr. S.N.P. Srivastava, Anand Bihari Shrivastav, Prabhat Kumar Shrivastav, Smt. Shail Srivastav, Smt. Usha Rani Verma, Smt. Malti Devi, Smt. Sita Shrivastav, Pankaj KUmar, Pratik Kumar, Prashant Kumar and Asha Rani), have also entered appearance and are represented by Ms. Sangita Laha who has supported the petitioners. They have, however, been heard at length. 6. Having perused the present application and the connected records and heard the submissions of the learned Counsel for the parties, I am of the view that this is a frivolous application and is fit to be rejected. On the own submission of the learned Counsel for the petitioners, the present application is not covered by the limited scope of Order XLVII, CPC. The contentions advanced on behalf of the petitioners, and fully supported by learned Counsel for O.P. Nos. 2 to 12, are not in the least available to him in a review petition, and he has argued in support of this application as if this Court is sitting in appeal. It is manifest from a plain reading of the order under review that the same was hot passed on non-est grounds. The learned single Judge has stated as follows in the judgment: The Title Suit was instituted by the plaintiff Radha Prasad who died on 10-8-1993 during the pendency of this application and his heirs and legal representatives have been substituted as opposite party Nos. 1 (a) to 1 (k). Notices were issued to opposite party Nos. 1(a) to 1(k) and had been validly served as reported by the office. It is thus obvious that this Court while passing the order under review was mindful of the demise of Radha Prasad. Parimal Kumar (defendant No. 7), is a practicing lawyer in the Siwan Civil Court, and his influence in the Bar Association was considered by this Court. 1(a) to 1(k) and had been validly served as reported by the office. It is thus obvious that this Court while passing the order under review was mindful of the demise of Radha Prasad. Parimal Kumar (defendant No. 7), is a practicing lawyer in the Siwan Civil Court, and his influence in the Bar Association was considered by this Court. Even if he ceased to be a member of the Vigilance Committee of the civil Court at Siwan on the date of the judgment of this Court, he continues to be a practicing lawyer at Siwan, a factor which cannot be ignored even today. The order, therefore, was not to that extent passed on non-est grounds. Furthermore, it is manifest from the judgment that the learned single Judge had considered the entire conspectus of the matter and after having carefully considered them passed the order. He had, inter alia, considered the counter-affidavit of O.P. No. 1 therein (the plaintiff), and that of O.P. Nos. 9 to 19 therein (namely, Smt Girja Devi, Surendra Kumar Srivastava, Devendra Kumar Srivastava, Smt. Madhuri Srivastava, Smt. Saraswati Devi, Ravi Shankar Srivastava, Pratibha Rani, Namrata Rani, Smt. Pushpa Verma, Smt. Chanda Rani and Kripa Shankar Srivastava). 7. Learned Counsel for the petitioner has invited my attention to the following order passed in MJC No. 746 of 1992 in an effort to establish that the aspect of the matter indicated therein was overlooked by the learned single Judge. 20-5-1993 Put up this case after the vacation. In the meantime, the learned Counsel for the petitioner will file an affidavit stating the names of the lawyers whom she wants to engage and who refuses to accept her brief. If so admitted, she may also mention the names of the lawyers whom she wants to engage. (S. Ali Ahmad, J.) The contention is stated only to be rejected. In the meantime, the learned Counsel for the petitioner will file an affidavit stating the names of the lawyers whom she wants to engage and who refuses to accept her brief. If so admitted, she may also mention the names of the lawyers whom she wants to engage. (S. Ali Ahmad, J.) The contention is stated only to be rejected. This aspect of the matter has been duly considered by the learned single Judge as would appear from the following portion of the judgment: ...In the supplementary affidavit filed on behalf of the applicant it has been categorically stated that the applicants husband contacted many lawyers but they expressed their inability to oppose Sri Radha Prasad, Advocate and the applicants efforts to have the services of experienced lawyer failed as no one responded to her request to defend her in a suit filed by an eminent lawyer of the District of Siwan. Names of the lawyer who were contacted and who refused to accept the brief for the applicants have been mentioned in the Supplementary Affidavit. However, Sri Bipin Bihari Verma who was the Counsel for the applicants husband, on great persuasion, agreed to accept the brief for the applicant but he has been pressurised by the plaintiffs son Sri Prabhat Kumar Srivastava and Defendant No. 7 in all possible manner not to work on behalf of the applicant. It is further evident that no allegation or aspersion has been made against any Presiding Officer of the Court but the only apprehension of the applicant is that she cannot effectively defend her case as most of the local lawyers have refused to accept the brief and the applicant has, therefore, been compelled to engage the same lawyer who was appearing for her husband but he too was not being permitted to plead the case of the applicant on account of the pressure and influence of the plaintiffs son and Defendant No. 7 who are also practicing lawyers. It is, therefore, expedient to transfer this case from the Court of Subordinate Judge-IV, Siwan to Patna in view of the fact that opposite party Nos. 1(a) and 1(b), S.N.P. Srivastava and Anand Bihari Srivastava are residing at Patna and so also the Defendant No. 6 who is opposite party No. 9 herein. S.N.P. Srivastava and Anand Bihari Srivastava are the sons of late Radha Prasad, the original plaintiff. 1(a) and 1(b), S.N.P. Srivastava and Anand Bihari Srivastava are residing at Patna and so also the Defendant No. 6 who is opposite party No. 9 herein. S.N.P. Srivastava and Anand Bihari Srivastava are the sons of late Radha Prasad, the original plaintiff. It is thus manifest that the learned Single Judge had very closely considered the relevant aspects of the matter including convenience of the heirs of the original plaintiff who are residing in Patna. 8. It appears to me on a consideration of the matter including the connected, records that the petitioners as well as the heirs of the original plaintiff are determined that the suit should not proceed in Patna although a number of them reside in Patna which further lends weight to the judgment under review that the matter should continue in Patna. The petitioners and the heirs of late Radha Prasad have engaged themselves in frivolous causes burdening this Court with unwanted litigations. It is a good deal on account of such unscrupulous litigants that the Courts in this country in general, and this State in particulars, are groaning under the weight of arrears. Instead of appearing in the suit and allowing it to conclude, they are putting unnecessary impediments. Furthermore, learned Counsel for the petitioners during the course of his elaborate submissions did not even briefly indicate as to the difficulty they would face in the Patna Civil Court. His submissions have been to the effect that the judgment is based on no nest grounds. In fact, the submissions advanced on behalf of the petitioners before me in support of this application are based on false and nonexistent grounds. Furthermore, orders dated 6-11-1998 and 11-12-1998 passed in the present case were to the effect that pendence of this review application shall not be considered as an impediment by the learned 4th Sub-ordinate Judge, Patna, in the progress of the suit, but the suit has made no headway. All this reinforces the apprehension that the plaintiffs as well as the petitioners wish to misuse their influence at Siwan. 9. I am in no doubt that the unholy attempts on the part of the present petitioners and the heirs of late Radha Prasad amount to a gross abuse of the process of the Court. Enunciation of the law governing this issue occurs in Halsburys Laws of England. 9. I am in no doubt that the unholy attempts on the part of the present petitioners and the heirs of late Radha Prasad amount to a gross abuse of the process of the Court. Enunciation of the law governing this issue occurs in Halsburys Laws of England. Fourth Edition (Hailsham Edition), volume-9 paragraph 38 at page 27 and is set out herein below for the facility of quick reference: 38. Abuse of process in general. The Court has power to punish as contempt any misuse of the Courts process. Thus the forging or altering of Court documents and other deceits of like kind are punishable as serious contempts. Similarly, deceiving the Court or the Courts officers by deliberately suppressing a fact, or giving false facts, may be a punishable contempt. Certain acts of a lesser nature may also constitute an abuse of process as, for instance, initiating or carrying on proceedings which are wanting in bona fides or which are frivolous, vexatious, or oppressive. In such cases the Court has extensive alternative powers to prevent an abuse of its process by striking out or staying proceedings or by prohibiting the taking of further proceedings without leave. Where the Court, by exercising its statutory powers, its powers under rules of Court, or its inherent jurisdiction, can give an adequate remedy, it will not in general punish the abuse as a contempt of Court. On the other hand, where an irregularity or misuse of process amounts to an offence against justice, extending its influence beyond the parties to the action, it may be punished as a contempt. The same was quoted with approval by the Supreme Court in its judgment reported in - (Advocate-General, Bihar V/s. M.P. Khair Industries). In fact, the Supreme Court has gone to the extent of stating that abuse of the process of the Court may be a punishable contempt. 10. In the result, this application fails and is hereby dismissed with costs quantified at Rs. 2,500.00 (two thousand and five hundred), and the trial Court shall ensure its deposit in the Nazarat. The petitioners and O.P. Nos. 1 to 12 are represented before this Court and are hereby directed to appear in the suit and who shall not need any further notice from the trial Court. 2,500.00 (two thousand and five hundred), and the trial Court shall ensure its deposit in the Nazarat. The petitioners and O.P. Nos. 1 to 12 are represented before this Court and are hereby directed to appear in the suit and who shall not need any further notice from the trial Court. This being a suit of 1991, the trial Court is hereby directed to dispose of the same within a period of six months from the date of receipt and/or proc action of a copy of this order and report compliance to this Court. In view of the orders dated 6-11-1998 and 11-12-1998, the trial Court is answerable for the delay in the disposal of the Suit.