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2011 DIGILAW 8 (JHR)

Braj Kishore Pd v. Uma Dev

2011-01-05

R.R.PRASAD

body2011
Order I.A. No. 2325 of 2009 in (C. Rev. No.4 of 2007) with I.A. No. 2430 of 2009 in (C. Rev. No. 10 of 2007) By way of both the interlocutory application, substitution petition has been filed for substituting the heirs of petitioner No. 1 (in I.A. No. 2325 of 2009) and respondent No. 2 (I.A. No. 2430 of 2009), namely Braj Kishore Prasad, who died leaving behind the heirs, whose name has been described in paragraph-2 of the I.A No. 2325 of 2009 and paragraph-4 of the I.A. No. 2430 of 2009, as right to sue still survives. No objection has been raised by the other side. 2. Accordingly, let legal representatives of petitioner No.1 (in I.A. No. 2325 of 2009) and respondent No.2 (in I.A. No. 2430 of 2009), whose description has been given in paragraph-2 of the I.A. No. 2325 of 2009 and paragraph-4 of the I.A. No.2430 of 2009, be substituted in place of petitioner No. 1 (in I.A. No. 2325 of 2009) and respondent No.2 (in LA. No. 2430 of 2009). Substituted heirs have already been appeared through lawyer. 3. Thus, both the I.As. stand disposed of. Civil Review No.4 of 2007 with Civil Review No.10 of 2007 4. Heard learned counsel appearing for the petitioners and learned counsel appearing for respondents on the merits of the case. 5. On perusal of the record, it does appear that an order was passed in Partition Suit No. 28 of 1951, by learned Sub-Judge, Hazaribagh, whereby a Pleader Commissioner was appointed for Takhta Bandi. 6. That order was challenged before this Court in W.P.(C) No. 74 of 2005*, by one of the descendants of the original defendant No.1. Plaintiff was made party in the said writ application but descendant of defendant No.2 was not imp-leaded as party in the said writ application. The stand which was taken on behalf of the petitioner of that case was that the final decree had already been passed on the basis of preliminary decree, after getting a report of the Pleader Commissioner, but the learned court below ignoring that fact again passed the order for appointment of the Pleader Commissioner for Takhta Sandi, though the parties had taken possession of their respective shares, shown in the Pleader Commissioner's report, Which had been confirmed by the Court. 7. 7. However, learned counsel appearing for the respondent (Descendant of the Plaintiff) had refuted the fact that any final decree had ever been drawn by the court and had any such final decree would have been drawn that must have been filed but the party has failed to produce the copy of the final decree before the Court. However, submission advanced on behalf of the respondent was not accepted for the reason assigned herein below:- "The aforesaid fact about final decree passed in the Partition Suit No.28 of 1951 mentioned in the subsequent judgment finds support from the admitted fact that no application for preparation of final decree was filed by the respondents or their predecessors in-interest till 2003. The Court below, therefore, committed serious error of law in not considering these facts and also the fact that the instant application for preparation of final decree was filed by the respondents after about 46 years from the date when Pleader Commissioner's report was confirmed. The Court below has further committed serious error of law in not considering the order dated 21.2.1957, which shows that a Pleader Commissioner was already appointed and the report submitted by the Pleader Commissioner was confirmed. In my considered opinion, when a Pleader Commissioner was appointed and the report of the Pleader Commissioner was confirmed in the suit 46 years back, then there was no occasion for the Court below to again the application for appointment of a new Pleader Commissioner and for preparation of separate Takhta. Admittedly, the suit was decreed on compromise in 1952. A copy of the said decree has been filed and marked as Annexure-2 to this application. The operative portion of the decree reads as under:- "This suit coming on this the 21st day of August,. 1952 for final disposal before Sri Kamal Kumar Bose, Sub-Judge, Hazaribagh in presence of Mr. Jagarnath Sahay, Pleader for the plaintiff and Sri N.C. Ghosh for the defendant, it is ordered and decreed that compromise be recorded and the petition will form part of the decree." 8. Accordingly, the Court allowed the Writ Application by its order dated 12.12.2006, setting aside the order passed by the learned trial court. 9. Jagarnath Sahay, Pleader for the plaintiff and Sri N.C. Ghosh for the defendant, it is ordered and decreed that compromise be recorded and the petition will form part of the decree." 8. Accordingly, the Court allowed the Writ Application by its order dated 12.12.2006, setting aside the order passed by the learned trial court. 9. That order has now been sought to be reviewed on behalf of the descendant of the plaintiff (one of the respondents in the writ application) and also by one of the intervener (Descendant of Defendant No.2), who had filed application for intervention in the writ application. 10. Mr. Bhaiya Biswajeet Kumar, learned counsel appearing for the petitioner submitted that though the intervention petition was filed in the writ application but the counsel was never given any opportunity of being heard in the matter, as a result of which order was passed, without hearing the counsel appearing for the intervener, who was a necessary party to the proceeding and as such the said order warrants to be reviewed. 11. learned counsel appearing for the petitioner in Review Application No.4 of 2007 submits that though the respondent had put appearance, but on the day when the case was heard, the counsel was not present, as a result of which, the respondent could not be heard and the case was decided. learned counsel further submits that the court below on perusal of the record did come to the conclusion that in fact, no final decree had earlier been prepared but that fact was upset by this Court without any basis and hence, the order impugned is fit to be reviewed. 12. As against this, Mr. G. N. Chandra, learned counsel appearing for the represent submits that though the petitioners are seeking review of the order passed by this Court on 12.12.2006 but they have failed to establish that the order suffers from any error apparent on its face. 13. Having heard learned counsel for the parties and on perusal of the records including the impugned order. I do find that the Court, having taken into consideration the materials placed before it and the reason quoted above, came to the conclusion that the final decree has already been prepared and as such it was held that there was no occasion for the Court to pass a fresh order for appointment of the Pleader Commissioner. 14. I do find that the Court, having taken into consideration the materials placed before it and the reason quoted above, came to the conclusion that the final decree has already been prepared and as such it was held that there was no occasion for the Court to pass a fresh order for appointment of the Pleader Commissioner. 14. In that view of the matter, submissions advanced on behalf of the petitioners of Review Application No.4 of 2007, cannot be accepted for reviewing the order. 15. Moreover, it has been admitted that the appearance had been put in the case on being noticed and if on the day when the matter was heard and decided, the counsel does not appear, that cannot be a ground for reviewing of the order dated 12.12.2006, which was passed, after hearing the parties present on that day particularly when order never suffering from any error apparent on its face. Furthermore, nothing was placed before me to establish that the order impugned suffers from any apparent error either on law or on fact. 16. Similar is the case of the petitioner of Civil Review No. 10 of 2007. Admittedly, the petitioner had not imp-leaded as party respondent in the writ application but when the petitioner had filed intervention petition, it was his duty to press his application for intervention but in spite of being appeared, nothing seems to have done in this regard•. In that view of the matter, it is hard to accept the contention made on behalf of the petitioner that he had not been given any opportunity of being heard before impugned order dated 12.12.2006 was passed. 17. In view of the facts and circumstances, as stated above, I do not find any merit in both the review applications and hence both the review applications stand dismissed.