Research › Search › Judgment

Patna High Court · body

2019 DIGILAW 1393 (PAT)

Deena Nath Seth v. Md. Nasim Rayeem @ Md. Nasim Raine

2019-10-17

S.KUMAR

body2019
S. KUMAR, J.:–Heard learned counsel for the parties. 2. This civil revision petition has been filed against the order dated 17.08.2009 passed by learned Munsif/Civil Judge (Jr. Division), Bhabhua, in Review Petition No. 1 of 2009 arising out of judgment and decree dated 12.06.2009 and 03.07.2009 in Title Suit No. 44 of 2006, which was filed by plaintiff-Opposite party for declaration of his right, title and interest over the suit land and also for declaration that the disputed wall between the plaintiffs and defendants and part of which was damaged by the defendants be restored at the expense of defendants and further to grant damage of Rs. 1,000/-. The operative part of the order reads as follows:— "That suit be & same is decreed partly on contest with cost with the direction that defendant shall construct & restore the suit wall in its original status at this own cost in the presence of Court Officer & plaintiff both. At present there is no finding on point title with respect to suit wall." 3. Thereafter defendant-petitioner filed a review petition for review of the order, however, subsequently he filed a petition to withdraw the review petition for the reason that the plaintiff and defendants both have preferred appeal against the judgment and decree dated 17.08.2009, which is pending for adjudication before the Appellate Court, however, in spite of prayer for withdrawal of said review petition, the learned court below has decided the review petition and reviewed the order as impugned in this revision petition. 4. Once the petition for withdrawal of review petition was filed by the defendant-petitioner there was no occasion for the trial court to pass any order except to permit the defendant-petitioner to withdraw his review petition or if the learned court below refused permission to withdraw review petition it ought to have given sufficient reasons for not allowing the defendant-petitioner to withdraw the review petition. However, the court below heard and passed order on review petition beyond the ambit and scope of review jurisdiction against which present revision petition has been filed. Once the prayer to withdraw the review petition was made by the defendant-petitioner, the court had no option but to pass order of withdrawal of the review petition, as such the order as impugned was without jurisdiction and is accordingly, set aside. The civil revision petition is allowed.