Research › Search › Judgment

Jharkhand High Court · body

2022 DIGILAW 964 (JHR)

Jai Prakash Narayan Lal v. Rajeev Kumar Mandilwar

2022-08-03

RAJESH SHANKAR

body2022
ORDER : 1. The present writ petition has been filed against the order dated 24th April, 2018 (Annexure-6 to the writ petition) passed by the learned District Judge-I, Giridih in Title Appeal no.88 of 2012 (presently pending at the stage of argument), whereby the petitioner’s application filed under Order XLI Rule 25 C.P.C. to settle the issue by recasting with regard to devolution of interest of land to the widow of Late Rudra Prasad and to decide the same accordingly, has been disposed of with an observation that the same would be considered at the time of final judgment, though the same Court on earlier occasion i.e. vide order dated 5th May, 2015 had observed that the said issue would be considered at the time of final argument. 2. Heard learned counsel for the petitioner and perused the contents of the writ petition including the orders dated 5th May, 2015 and 24th April, 2018 passed by the appellate court. 3. The appellant/petitioner (defendant no.2 in Title Suit no.13 of 1992) filed an application on 7th November, 2014 under Order XLI Rule 25 CPC before the appellate court with a plea that the issue with regard to devolution of interest of land to the widow of Late Rudra Prasad should be recast. The appellate court vide order dated 5th May, 2015, while taking note of the fact that the appellant/petitioner had taken the said ground in memo of appeal, which he wanted to settle before commencement of argument, observed that the said issue would be considered at the time of final argument. Thereafter, the petitioner again filed similar application on 8th November, 2017, which was disposed of by the appellate court vide impugned order dated 24th April, 2018 making similar observation as was made in the order dated 5th May, 2015, with only difference on this occasion that the said application filed under Order XLI Rule 25 CPC would be considered at the time of final judgment. 4. It is not understood, as to why the petitioner filed subsequent application on 8th November, 2017 under Order XLI Rule 25 CPC when the appellate Court had already passed the order dated 5th May, 2015 on his similar application filed on 7th November, 2014. 5. 4. It is not understood, as to why the petitioner filed subsequent application on 8th November, 2017 under Order XLI Rule 25 CPC when the appellate Court had already passed the order dated 5th May, 2015 on his similar application filed on 7th November, 2014. 5. This Court is of the view that since there was already an observation made by the appellate court on 5th May, 2015 that the aspect of recasting of the issue relating to devolution of interest of land would be considered at the time of final argument, there should not have been any variance from the same while passing the subsequent order i.e. the impugned order dated 24th April, 2018. Otherwise also, there was no reason for the appellate court to make observation in the impugned order dated 24th April, 2018 that the aspect of recasting of the issue would be considered at the time of final judgment. 6. Hence, the petitioner is given liberty to make argument on the aspect of recasting of the issue relating to devolution of interest of the land to the widow of Late Rudra Prasad which shall be considered by the appellate Court after providing due opportunity of hearing to the respondents also. 7. The writ petition is, accordingly, disposed of with aforesaid liberty and direction. 8. I.A. No.599 of 2022 is also disposed of.