The High Court of Jharkhand while setting aside an order passed in a title suit wherein the application under Order XXII Rule 3 read with Section 151 CPC filed by the petitioner was dismissed held that an order passed on the application under Order XXII Rule 3 CPC is not appealable under Order XLIII Rule 1 CPC rather it is a revisable order.
Brief Facts:
The present petition was filed under Article 227 for quashing of order passed by the trial court whereby the application for Title Eviction Suit under Order XXII Rule 3 read with Section 151 CPC filed by the petitioner was dismissed.
Contentions of the Petitioner:
The learned counsel appearing on behalf of the petitioner contended that the impugned order was absolutely illegal and was beyond the jurisdiction of the learned court below and further it was a case of none of the parties as to what is the nature of the suit premises and the status of the parties. Further, it was argued that the court below has travelled beyond its jurisdiction while recording findings that the original plaintiff was sikmidar and as per provisions of Section 4 & 76 of the Chotanagpur Tenancy Act 1908, under Raiyat (Sikmidar) does not acquire any occupancy right in the land held by him under the Raiyat, in absence of any custom or usage prevalent in the area in respect thereof; it is neither heritable nor transferable and thus all rights of the plaintiff in respect of suit premises extinguished after his death and applicants cannot be substituted in place of the plaintiff.
Contentions of the Respondent:
The learned counsel appearing on behalf of the respondent contended that the application of the plaintiff under Order XXII Rule 3 CPC was decided on merits after providing the complete opportunity for a hearing. The suit has also been abated hence, an appeal lies under Order XLIII Rule 1 of the CPC against the order passed under Order XXII Rule 9 CPC and the petition under Article 227 is not maintainable.
Observations of the court:
The court stated that the impugned order appears to be not justified in law in view of the fact that an application under Order XXII Rule 3 was filed within the time for substitution of legal heirs of the plaintiff and further the nature of the suit is the recovery of possession and no question of title is involved and it is not a case of either party as to what was the status of the plaintiff in respect of the suit premises and whatever plea taken by the defendant at the time of hearing the application under Order XXII Rule 3 CPC must be confined to inquiry about the heirs and legal representatives of the deceased party and there is no dispute that the petitioners are heirs and legal representatives of the deceased plaintiff and thus there was no occasion to the learned court below to dismiss the application for substitution of petitioners on extraneous considerations regarding the status of applicants as similar.
Further, it was stated that on the date of dismissal of the application under Order XXII Rule 3 no order was passed regarding abatement of the suit and the suit was carried forward without any reason for more than one year and during the pendency of this application the impugned order was passed. Further, the court stated that an order passed on the application under Order XXII Rule 3 CPC is not appealable under Order XLIII Rule 1 CPC rather it is a revisable order.
The decision of the Court:
The court allowed the petition and set aside the impugned order.
Case Title: Munga Devi and ors. vs Kamla Devi
Coram: Hon’ble Mr. Justice Pradeep Kumar Srivastava
Case No.: C.M.P. No. 414 of 2021
Advocate for the Petitioner: Mr. Shankar Lal Agarwal
Advocate for the Respondent: Ms. Vikas Kumar
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