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2007 DIGILAW 697 (PAT)

Krishan Kumar @ Munna v. Brahmdeo Prasad

2007-04-06

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Plaintiff Nos.1 and 2-petitioners, being aggrieved by the order dated 3.8.2005 passed by the Subordinate Judge, II, Barh in T.S.(P) No. 62 of 1999 refusing to review the order dated 24.5.2001, have preferred this application. 2. Short facts, giving rising to the present application, are that the original plaintiffs filed suit for partition. Later on, they filed application for withdrawal of the suit. It was taken up by the court on 24.5.2001 when Counsel for the defendants, excepting defendant no. 7, consented to its withdrawal. The learned Judge accorded permission to withdraw the suit by order dated 24.5.2001. On the same date, later on, defendant no. 7 filed application for rejecting the prayer of the plaintiffs seeking withdrawal of the suit. However, the said application was not pressed. Further, on 28.5.2001, defendant no. 7 filed application under Order 23 Rule 1A of the Code of Civil Procedure for transposing him as plaintiff. By order dated 19.7.2001, application filed by the original plaintiffs for withdrawing the suit was rejected and order dated 24.5.2001 according permission to withdraw the suit recalled and defendant no. 7 transposed as the plaintiff. After the said order, defendant no. 7 transposed as plaintiff no. 3 and the original plaintiffs continued in the record as Plaintiff Nos. 1 and 2. Neither Plaintiff Nos. 1 and 2 nor the defendants appeared in the suit and the suit was fixed for ex parte hearing, in which several witnesses were examined on behalf of Plaintiff No. 3. 3. Original plaintiffs, i.e. Plaintiff Nos. 1 and 2 filed application on 19.4.2004 for reviewing the order passed subsequent to the orders dated 24.5.2001, inter alia, contending that order dated 12.7.2001 recalling the order dated 24.5.2001 according permission to withdraw the suit, was passed without notice to them. They further alleged that they did not know about the continuance of the suit and could know about the same only when Mr. Subhash Chandra Singh, Advocate for the original plaintiffs, while present in the court on 24.3.2004, saw that evidence is being adduced by the mother of the original Defendant No. 7, he informed the original plaintiffs, upon which they came to the court and on inspection of the record found that Defendant No. 7 has been transposed as Plaintiff No. 3 and order according permission to withdraw the suit has been recalled by order dated 24.5.2001. Accordingly, original plaintiffs prayed for review of the orders passed subsequent to the order dated 24.5.2001. 4. By reason of the impugned order, the learned Judge has dismissed the application primarily on the ground that he being successor in office, has no jurisdiction to hold that the order passed by his predecessor earlier is illegal and without jurisdiction. It further held that he lacks jurisdiction to review several orders passed by his predecessor. 5. Mr. Shri Nandan Singh, Senior Advocate appearing on behalf of the petitioners submits that the successor in office can review the orders passed by his predecessor, if it finds error apparent on the face of. record and the view takerrto the contrary, while passing the impugned order is illegal. 6. Mr. Chitragupta Prasad, however, appearing on behalf of the opposite party no. 7 contends that the view taken by the learned Judge, cannot be said to be erroneous and as such, this is not a fit case which calls for interference by this Court in exercise of revisional jurisdiction. In support of his submission, he has placed reliance on a judgment of the Aflahabad High Court in the case of Madan Mohanji Maharaj vs. Sunder Lal AIR 1953 All. 554 and my attention has been drawn to the following passage from paragraph no. 5 of the said judgment, which reads as follows : "5. xxx-In-Ram Lal vs. Ratan Lal, 26 All 572 (A) a Bench of this Court held that a High Court cannot revise an order of an inferior Court declining to review its judgment. That case was distinguished in-Akbar Khan vs. Muhammad Ali Khan, 31, All 610 (B) and - Will vs. Hawad Gyssaubm 29 All. 468 (C), in both of which it was held that when an inferior Court rejects an application for review on the ground that it had no jurisdiction, its order cannot be revised by the High Court under S.115, Civl P.C.).xxx" 7. Reliance has also been placed on another judgment of the Allahabad High Court in the case of F.G. Davidson vs. Mohan Lal Sindhi AIR 1964 Allahabad 342 and my attention has been drawn to the following passage from the said judgment, which reads as follows: "5.-It is manifest, that what the learned Munsif did was to sit in appeal on the order of his predecessor and was not reviewing the order. In these circumstances the order of the learned Munsif dated the 13th October, 1961, is clearly without jurisdiction." 8. I do not find any substance in the submission of Mr. Prasad. May be in the facts of a given case, the successor in office may not like to exercise the power of review but as a proposition of law, it cannot be said that in all circumstances, the successor in office lacks jurisdiction to review the order passed by its predecessor. In my opinion when conditions well known for review of the order is satisfied, nothing prevents the successor in office to review the order passed by its predecessor. 9. Now referring to the decision of the Allahabad High Court in the case of Madan Mohanji Maharaj (supra), relied on by Mr. Prasad, same instead of supporting his contention goes against him. In case in hand, the Court below has declined to exercise jurisdiction on the ground that successor in office is not possessed of such jurisdiction. In the case relied on, it has been held as follows : "5.xxx In the present case, the learned Civl Judge has not refused to exercise jurisdiction; he has assumed jurisdiction but refused to review the judgments because he did not find any merits in the applications. His view that there was no error apparent on the face of the record might be erroneous but he was entitled to entertain that view and it cannot be said that he acted illegally or with material irregularity in entertaining it." 10. In the case of F.G. Davidson (supra) the order of review was held to be without jurisdiction not on the ground that successor in office has no jurisdiction but on the ground that later can not act as a Court of appeal. Hence this decision is clearly distinguishable. What to talk about successor in office, in my opinion, even the same officer can not review its own order sitting as a Court of appeal. In either case, before power of review is exercised, the well known principles of review deserve to be fulfilled. 11. Mr. Prasad, contends that the original plaintiffs have prayed for review of several orders, which is not permissible in law and hence order impugned is not fit to be interfered with. In either case, before power of review is exercised, the well known principles of review deserve to be fulfilled. 11. Mr. Prasad, contends that the original plaintiffs have prayed for review of several orders, which is not permissible in law and hence order impugned is not fit to be interfered with. In this connection, he has drawn my attention to the application filed by the original plaintiffs, which indicates that they had sought review of all the orders passed subsequent to the order dated 24.5.2001. The application filed by the plaintiffs, in sum and substance, means that the orders passed after the Court had accorded permission to withdraw the suit, be reviewed. The pleading may not be artistic but, in my opinion, that itself shall not deprive the original plaintiffs the reliefs which they are otherwise entitled. 12. The learned Judge, while passing the impugned order, got swayed by the fact that it has no jurisdiction to review the order and the said view being erroneous in law, I am of the opinion, that the Court below failed to exercise the jurisdiction vested in it by law. On this ground alone, impugned order is vitiated. 13. It is made clear that I have not expressed any opinion in regard to the merit of the case and that shall be decided by the Court below in accordance with law. 14. In the result, this application is allowed, impugned order dated 3.8.2005 passed by the Subordinate Judge, II, Barh in T.S. (P) no. 62 of 1999 is set aside. The learned Judge, in seisin of the suit, is directed to proceed in the matter afresh bearing in mind the observation aforesaid. No cost.