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2013 DIGILAW 960 (PAT)

Suresh Modi v. State Bank Of India

2013-08-07

AJAY KUMAR TRIPATHI

body2013
ORAL ORDER A civil review application was filed by the petitioner, challenging the order, dated 04.10.2007, passed in Money Suit No. 4 of 2006 by Sub-Judge-V, Bhagalpur. A prayer to allow the petitioner to become an intervener in the Money Suit No. 4 of 2006 as well as to allow him to be impleaded as Defendant No. 7 has been rejected by the said order, though according to the petitioner, he was a necessary party to the suit and was deliberately left out in the proceeding by the plaintiff. 2. The short background to the present case is that one Late Sona Devi had opened a saving account, bearing Account No. 01190039825 in the State Bank of India, Main Branch at Bhagalpur. She operated the said account herself. Sona Devi had no issue. Petitioner was the person, who was taking care of her in old age, since her husband Late Jagdish Modi pre-deceased her. After the death of her husband, she became the absolute owner of the property and she had absolute and exclusive right to deal with the same. 3. Out of love and affection as well as being happy with the service rendered by the petitioner, he started living in the house, standing over Khata No. 232, Khesra No. 1727, amounting to an area 0445 hectors, for last so many years. 4. During the lifetime of Sona Devi, she executed her last free-will in favour of the petitioner on 11.08.2003. She left behind all her properties, movable or immovable, including the deposit of money with any bank. Sona Devi died on 17.01.2004. The petitioner performed the Shradh ceremony as per Hindu rights and rituals. 5. While Sona Devi was still alive, one Bishnu Kumar and his father filed a Title Suit No. 344 of 2002, before the Court of Sub-Judge, Bhagalpur. Sona Devi filed a written statement before the Sub-Judge denied all the assertions and claim made in the title suit, but obviously could not contest the matter due to her sudden demise. 6. It is the case of the petitioner that after the death of Sona Devi, he got the property mutated in his name on the basis of the last will and petitioner has been in exclusive possession of the property covered in schedule-A. 7. 6. It is the case of the petitioner that after the death of Sona Devi, he got the property mutated in his name on the basis of the last will and petitioner has been in exclusive possession of the property covered in schedule-A. 7. Besides the title suit, the said Bishnu Kumar had also filed a Money Suit No. 4 of 2006 against the State Bank of India and others, claiming himself to be the direct successor and beneficiary of the amount, deposited in the name of Late Sona Devi, despite knowing fully well that it is the petitioner, who had become the beneficiary of all the movable and immovable property, by virtue of the will. He intentionally did not implead him as a defendant. When the petitioner came to know about above fact, he filed an application under Order 1, Rule 10 (2) read with 151 of the CPC to be impleaded as a necessary party intervener/defendant, which was rejected by the impugned order, dated 04.10.2007. 8. After the filing of the civil revision, assailing the impugned order, the matter was heard on a few dates. Notices were also issued upon the respondents, but what is of significance is Order No. 2, dated 07.04.2009. While taking note of the background of the dispute, the learned Single Judge categorically recorded in the said Order “......... the trial court shall not deliver the judgment till the pendency of the revision application”. In other words, there was a complete embargo imposed by the High Court upon the trial court from delivering any judgment during the pendency of the revision application. Still a judgment came to be delivered by the Sub-Judge-VII, Bhagalpur and the author of the judgment in question is said to be one Shri Pandey Rishi Kant Sinha, who was posted at Bhagalpur at the relevant time, when the judgment was delivered on 11.05.2011, by him. 9. Still a judgment came to be delivered by the Sub-Judge-VII, Bhagalpur and the author of the judgment in question is said to be one Shri Pandey Rishi Kant Sinha, who was posted at Bhagalpur at the relevant time, when the judgment was delivered on 11.05.2011, by him. 9. The Court also takes notice of the fact that vide Order No. 7, dated 08.07.2010, taking into consideration a series of decisions rendered by the Hon'ble Supreme Court as well as Patna High Court, petitioner was directed to convert the civil revision into a writ application under article 227 of the Constitution of India, petitioner was permitted to do so in following words “Let the petitioner convert this Civil Revision into a Writ Petition under Article 227 of the Constitution of India within two weeks, failing which this Civil Revision shall stand rejected without further reference to a Bench.” In other words, a preemptory order was passed for conversion of the civil revision to a writ petition. 10. Petitioner converted the civil revision into a civil writ, which was registered as C.W.J.C. No. 3066 of 2011. Since compliance of the direction of the Learned Single Judge of converting the writ application within a time frame had been carried out and there is no order to indicate from the order-sheet that the civil revision converted into a writ application was ever dismissed, the order of restraint passed earlier in the civil revision application dated 07.04.2009 continued to operate against the lower court proceeding. 11. However, now it is pointed out that the final order or judgment has been rendered by Sub-Judge-VII, Bhagalpur in complete defiance of the Order of the High Court, which compelled this Court to issue notice to Shri Pandey Rishi Kant Sinha to explain his conduct. It must also be recorded that a certified copy of the Order of Stay, dated 07.04.2009 was duly filed in the Court below and is on record. Even the High Court communicated this Order on 08.05.2009. The Court below was in full knowledge of the Order of Stay, which cannot be denied by the Subordinate Judge. Despite the same, a judgment dated 11.05.2011 came to be passed in the Money Suit No. 4 of 2006. 12. Besides the show-cause, which was demanded by the Court, this Court also called for the original record of Money Suit No. 4 of 2006. Despite the same, a judgment dated 11.05.2011 came to be passed in the Money Suit No. 4 of 2006. 12. Besides the show-cause, which was demanded by the Court, this Court also called for the original record of Money Suit No. 4 of 2006. There is ample evidence available to show that the Court below was aware of the Order of Stay passed by the High Court. However, by misconstruing the preemptory Order No. 7, dated 08.07.2010, the Subordinate Court goes to record in its judgment that since civil revision was dismissed, he could proceed with the delivery of the judgment and decreed the money suit. 13. This Court finds it strange and unacceptable position taken by the said Sub-Judge that after so many years in judicial service he does not understand what a preemptory order means. If he had any doubts about the earlier Order of Stay or disposal of civil revision by its dismissal as he says he should have very well verified the position by directing the parties to the dispute to state the position or produce order confirming so. But since there was no order of dismissal of the civil revision and the civil revision was converted into a writ application under article 227, obviously, there was an element of mischief, which has been indulged into by the concerned Sub-Judge, Pandey Rishi Kant Singh, who was posted as Sub-Judge-VII at Bhagalpur. 14. Even in the show-cause, the Sub-Judge has tried to justify his order by saying that since he understood the Order No. 7, to be an order of dismissal of the civil revision, he proceeded with delivery of judgments in the money suit. 15. This Officer is now posted as Sub-Judge-I-cum-ACJM, Civil Court, Kishanganj and taking the above facts and circumstances into consideration, this Court does come to a considered opinion that it is a case of gross misconduct on the part of Pandey Rishi Kant Sinha, the Ex-Sub-Judge-VII, Bhagalpur and now Sub-Judge-I-cum-ACJM, Civil Court, Kishanganj. In the opinion of this Court, it is a matter, which is required to be looked into on the administrative side, by brining to the notice of Hon'ble Standing Committee, a copy of the Order passed, as above. 16. In the opinion of this Court, it is a matter, which is required to be looked into on the administrative side, by brining to the notice of Hon'ble Standing Committee, a copy of the Order passed, as above. 16. Coming to the validity of the order or the judgment passed by learned Sub-Judge, dated 11.05.2011, this Court has no hesitation in holding that the judgment and the decree passed in Money Suit No. 4 of 2006 by learned Sub-Judge-VII, Bhagalpur is a nonest order, which is required to be set aside, as it has been passed despite an Order of Stay having been passed by the High Court not to deliver the judgment in the case. This Court remind all such Officers what Hon'ble Patna High Court had to say in the case of Motiram Roshanlal Coal Co. (P) Ltd. versus District Committee, Dhanbad and others, reported in A.I.R. 1962 Patna 357. The ratio of the decision which emerges from paragraph 15 and 16 of the Order is reproduced hereinbelow to apprise all such recalcitrant Officers, as to what they are required to do when an Order of Stay is passed by the High Court or a superior Court. Paragraph 15 and 16 are, therefore, reproduced herein-below:- “ (15) It is well-settled that an order by a superior Court staying further proceedings in the Court below becomes operative the moment it is made and not after its communication to the sub-ordinate Court. Where, therefore, an order is made by the superior Court, be it the appellate Court or the revisional Court, staying further proceedings in a case in the Court below, subordinate to it, it suspends the power of the lower Court to continue the proceedings in such a case. If, in spite of the stay of further proceedings in the Court below by the superior Court, some order is passed by the Court below, in violation of the stay order in operation, such an order is without jurisdiction (emphasis mine). (16) In the instant case, on the facts stated before, the Court below knew of the stay order passed by this Court and its attention was also drawn to that fact, but, in spite of having knowledge of the same, it issued a commission, as prayed for by defendants 2 to 5, which obviously it could not do when the stay order was in force. For these reasons, the order of the Court below issuing commission on 05.08.1961 must be set aside. This application also, therefore, succeeds and is allowed, and the rule is made absolute, and the impugned order of the Court below is set aside.” 17. If this is the legal position, which still occupies the field, as no contrary decision has been brought to the notice of this Court and there cannot be any contrary decision since the above decision is passed on sound legal principle, the judgment and decree dated 11.05.2011 passed in Money Suit No. 4 of 2006 is hereby quashed. So far as the initial order which is under challenge in the present writ application, rejecting the claim of the present petitioner for impleadment is concerned, even this order, dated 04.10.2007 is hereby set aside in the given facts, as in the opinion of this Court, he is a necessary party to the suit and is required to be heard, if not impleaded. 18. Writ application is allowed in terms of above. 19. Office is directed to return back the record of Money Suit No. 4 of 2006 to the court below immediately.