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2013 DIGILAW 77 (UTT)

Arun Kumar Mahendra v. Ajay Kumar Mahendra

2013-02-28

K.J.SENGUPTA

body2013
JUDGMENT Kalyan Jyoti Sengupta, J. 1. I have heard learned counsel for the parties. 2. I have gone through the impugned order of the learned revisional court below as well as trial court. 3. By this writ petition, the petitioner has challenged the order of revisional court dated 28.08.2012 by which the revision application filed against the order passed by the learned trial Judge dated 13.08.2012, has been dismissed. The short facts which are relevant for the disposal of this petition are as follows: 4. The respondent No.1 namely Ajay Kumar Mahendra filed a suit on or about 31.03.2003 against the petitioner as well as respondent No.2 namely Tarun Kumar Mahendra for declaratory relief. According to the petitioner, no writ of summon was served upon him. However, he entered appearance in the suit executing the vakalatnama. On 08.05.2003 a compromise petition was filed containing the signature of the petitioner in the petition. It is claimed that the content of the compromise petition was not known to him. It was filed without his approval and behind his back. Further putting signature on vakalatnama is not denied and disputed. According to him, the signature was put under unavoidable but unbelievable situation and circumstances, the said compromise petition was accepted by the Court and decree was passed on compromise dated 13.05.2003. The petitioner was not aware of passing of the said compromise decree and he came to know later on or about 08.10.2007 and accordingly made an application under section 151 CPC on 18.12.2007 for recalling the compromise decree. The learned Trial Judge while hearing this application made by the petitioner held that application under section 151 CPC was maintainable and in fact the delay was also condoned and matter was heard out on merit. The learned Trial Judge held that on merit, the application cannot be allowed. 5. Challenging the said order, the revision application filed before the learned District Judge who passed the impugned order holding that application made by the petitioner under section 151 CPC was not maintainable and remedy of the petitioner was by way of comprehensive civil suit. 6. The learned counsel for the petitioner submits that impugned order passed is patently improper exercise of jurisdiction. He submits that the aforesaid question of maintainability as decided by the learned Trial Judge was not questioned by the petitioner nor by the respondent No.3 by filing the revision application. 6. The learned counsel for the petitioner submits that impugned order passed is patently improper exercise of jurisdiction. He submits that the aforesaid question of maintainability as decided by the learned Trial Judge was not questioned by the petitioner nor by the respondent No.3 by filing the revision application. According to him, it was not an issue before the learned Revisional Court whether the said application under section 151 CPC was maintainable or not. 7. According to him, the learned revisional court should have decided the matter on merit within the revisional power. 8. After hearing, I find some substance in the argument of the learned counsel for the petitioner as the learned revisional court has decided the issue, which was not agitated at all before him. The court should decide which is agitated, of course the revisional court has inherent power to pass such appropriate order as it thinks but on the controversy raised before him. It appears that the learned trial Judge has decided the question of maintainability of application under section 151 CPC and not by civil suit in great detail. Neither the petitioner nor any of the respondents before me has challenged the said order by filing any application. According to me, it was not open for the learned revisional court to decide the question of maintainability decided by the first court and not questioned. This is a clear case of improper exercise of jurisdiction as he has rightly argued that the court has to decide the matter in controversy and issue which are placed and not to decide which is not placed. If any matter is decided which is not agitated, it amounts to not only improper exercise of jurisdiction but violation of principle of natural justice as the Court decides question raised by it without affording chance to the parties to meet. 9. Therefore, this impugned order is not sustainable in the eye of law. I, set aside the same. I, therefore, direct the learned Revisional Court to decide the revision application on merit not on the point of maintainability, which has reached its finality as no one questions now. This fresh hearing shall be done in terms of this order within three months from the date of communication of this order provided of course the compromise decree has not already been executed and satisfaction has been recorded as on today.