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2009 DIGILAW 421 (PAT)

Bishwanath Prasad v. Ganesh Prasad

2009-03-18

RAMESH KUMAR DATTA

body2009
JUDGEMENT Ramesh Kr.Datta, J. 1. Heard learned counsel for the petitioner and learned counsel for the opposite parties. 2. The civil revision has been filed against the order dated 30.6.2004 passed by the Munsif, Sikrahana at Motihari, in Misc. Case No. 25/03 by which he has allowed the petition dated 20.9.2003 filed by the opposite parties under Order IX Rule 9 of the Code of Civil Procedure for setting aside the dismissal of the Eviction Suit No. 11 of 2000 on account of non- production of list of documents and witnesses. 3. The petitioner is the defendant in the aforesaid eviction suit which was filed for evicting the defendant from the suit property and for delivery of possession and recovery of rent due on the premises and for further consequential reliefs. 4. After the issues were framed the parties were directed to produce their list of documents and witnesses. On 21.8.2003 the court below finding that despite several adjournments having been granted neither list of witnesses nor the documents had been produced and for the said reason in the absence of sufficient evidence and proper pairvi dismissed the suit. Against the said order the opposite parties filed Misc. Case No. 25/03 under Order IX, Rule 9 of the CPC. The petitioner appeared in the said Misc. Case and contested the same by producing his evidences and witnesses. Although a general objection was raised regarding non- maintainability of the said Misc. Case filed under Order IX Rule 9 of the CPC but no ground was taken that the court below had no jurisdiction to proceed in the matter under Order IX Rule 9 of the CPC since the order in question was an appealable order. On a consideration of the evidence of the parties the court below set aside the order dated 21.8.2003 and restored the matter on payment of cost of Rs. 500/- by the plaintiff-opposite parties to the defendant-petitioner. The petitioner accepted the cost of Rs. 500/- on 12.7.2004. Subsequently the present civil revision was filed on 10.8.2004 but the said fact regarding acceptance of cost of Rs. 500/- has not been mentioned in the revision application. 5. 500/- by the plaintiff-opposite parties to the defendant-petitioner. The petitioner accepted the cost of Rs. 500/- on 12.7.2004. Subsequently the present civil revision was filed on 10.8.2004 but the said fact regarding acceptance of cost of Rs. 500/- has not been mentioned in the revision application. 5. The only point argued by learned counsel for the petitioner is that the suit having been dismissed under Order XVII Rule 3(a) of the CPC the remedy of the plaintiff-opposite parties was by filing an appeal against the said order and, thus, there was inherent lack of jurisdiction in the court below to proceed under Order IX Rule 9 of the CPC. 6. Learned counsel for the opposite parties, on the other hand, submits that the said point regarding jurisdictional error having not been taken in the court below in the Misc. Case the petitioner ought not to be permitted to raise the same in the civil revision before this Court. It is further submitted that the acceptance of cost of Rs. 500A by the petitioner on 12.7.2004 gives rise to an estoppel against the petitioner from challenging the order in civil revision. Learned counsel also contends that the petitioner has not approached this Court with clean hands but has suppressed the fact of receipt of cost as ordered in the impugned order. It is urged by learned counsel that the question as to whether the earlier order had been passed under Order XVII Rule 3(a) or 2 of the CPC is dependent not upon the fact as to the mere presence of the parties rather the parties must be present with all preparedness to argue the case. It is also submitted that even if there was some jurisdictional error but substantial justice has been done then the revisional court should decline to interfere in the matter. 7. On a consideration of the rival submissions of the parties, this Court is not inclined to accept the submission of learned counsel for the petitioner in the facts and circumstances of the case. The petitioner has not only accepted the cost of Rs. 500/- which was conditional to the setting aside of the previous order of dismissal and restoration of the matter but also appears to have waived his rights in the matter and only upon subsequent rethinking the present revision application has been filed. The petitioner has not only accepted the cost of Rs. 500/- which was conditional to the setting aside of the previous order of dismissal and restoration of the matter but also appears to have waived his rights in the matter and only upon subsequent rethinking the present revision application has been filed. In any view of the matter, the suppression of the said fact in the revision application also goes against the petitioner. 8. The most important aspect of the matter is that the issue regarding non- maintainabiiity of the petition under Order IX Rule 9 of the CPC on account of the order in question being an appealable one has not been specifically taken in the court below in the Misc. Case and the petitioner thus took a chance before the court below and only upon an adverse order being passed against the petitioner he has chosen to approach this Court in its revisional jurisdiction. It is evident from the provisions of Order XIV Rule 2 of the CPC as also various decisions of this Court that an objection regarding jurisdiction has to be taken at the earliest stage. 9. It has also been pointed out by learned counsel for the opposite parties that as many as 16 witnesses have been examined after the matter was restored and have also been cross-examined by the petitioner. 10. In the above circumstances, considering that substantial justice has been done in the matter it will not be proper to interfere with the impugned order in the revisional jurisdiction. 11. The revision application is, accordingly, dismissed.