Jharkhand High Court
Ainul Haque Son Of Late Abdul Rahman vs Bibi Saliman Wife Of Shri Ajimuddin on 4 April, 2025
Author: Gautam Kumar Choudhary
Bench: Gautam Kumar Choudhary
2025:JHHC:10480
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Civil Review No. 93 of 2024
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1. Ainul Haque son of Late Abdul Rahman
2. Khatiza Khatoon daughter of Late Abdul Rahman
3. Sogra Khatoon daughter of Late Abdul Rahman
4. Bashira Khatoon daughter of Late Abdul Rahman
5. Sanjida Khatoon daughter of Late Abdul Rahman
6. Noorjahan Khatoon daughter of Late Abdul Rahman
All residents of Village Mandai Kalan, P.O. Reformatory School,
P.S. Sadar, District Hazaribag, Jharkhand
.... .... .... Petitioners
Versus
1. Bibi Saliman wife of Shri Ajimuddin, resident of Mandai Kalan, P.O.
Reformatory School, P.S. Sadar, District Hazaribag, Jharkhand
2. Md. Jalil, son of Late Azimuddin, resident of Village Mandai Kalan, P.O.
Reformatory School, P.S. Sadar, District Hazaribag, Jharkhand
3. Aasmin Khatoon @ Asma Khatoon, daughter of Late Azimuddin and wife
of Md. Mobarak, resident of Village Goharhanda, P.O. Bariath, P.S. Ichak,
District Hazaribag, Jharkhand
4. Sabra Khatoon daughter of Late Azimuddin and wife of Abdul Barik,
resident of Village Danr, P.O. Danr, P.S. Katkamsandi, District Hazaribag,
Jharkhand
5. Jamila Khatoon, daughter of Late Azimuddin and wife of Nezam Ansari,
resident of Village Mandai Kalan, P.O. Reformatory School, P.S. Sadar,
District Hazaribag, Jharkhand
6. Shakila Khatoon, daughter of Azimuddin and wife of Jamiruddin,
resident of Gado Khar, P.O. Kadma, P.S. Katkamsandi, District Hazaribag,
Jharkhand
7. Rehana Khatoon, daughter of Late Azimuddin and wife of Alam Ansari,
resident of Pelawal, P.O. Pelawal, P.S. Katkamsandi, District Hazaribag,
Jharkhand
8. Tabassum @ Tabassum Jahan, daughter of Late Azimuddin and wife of
Md. Mustaqueem Ansari, resident of Village Kolghati, P.O. Reformatory
School, P.S. Sadar, District Hazaribag, Jharkhand
9. Maksuda Khatoon wife of Feda Hussain, resident of Village Mandai
Kalan, P.O. Reformatory School, P.S. Sadar, District Hazaribag, Jharkhand
.... .... .... Respondents
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
For the Petitioners : Mr. Rajeev Ranjan Tiwary, Advocate
For the Respondents :
Order No.08 / Dated : 04.04.2025
Instant petition has been filed for review of the judgment and order
passed by this Court on 10.06.2024 in S.A. No.59 of 2009 whereby and
whereunder the appeal preferred by the defendants, was allowed setting
2025:JHHC:10480
aside the judgment and decree passed by the Courts below in favour of
plaintiffs/respondents/review petitioners.
2. Learned counsel on behalf petitioners submits that conducting
counsel, Mr. Manoj Kumar Sinha had died during pendency of the appeal
and therefore, no one appeared on his behalf and consequently, the appeal
was disposed of ex-parte. It is further submitted that respondent no.2-
Safidan Khatoon had also died during pendency of the appeal she was not
substituted and consequently judgment had been delivered against dead
person and will be non est in view of the ratio laid down by the Hon'ble
Supreme Court in the case of Kishun @ Ram Kishun (Dead) through LRs. Vs.
Bihari (Dead) by LRs., (2005) 6 SCC 300. It is also argued that Barhan Mian
was admittedly the owner of the property, whereas sale deed was executed
by his son Abdul Rahman who had no right to execute the sale deed during
the life time of his father in view of Mohammedan Law.
3. Having considered the submissions advanced on behalf of review
petitioner, it is evident that the suit was filed on 21.02.2002 and the Title
Appeal was disposed of on 12th January, 2009 and thereafter, the Second
Appeal was filed on 18.03.2009. The appeal was admitted on 22.02.2010 and
thereafter, was adjourned for more than ten years in this Court. Before
delivering the judgment on 10.06.2024, several adjournments were granted
and no one appeared on behalf of respondents and consequently,
considering it to be old case, the case was heard and disposed of by hearing
the appeallant. Right of being heard comes with a rider that it is an
opportunity and cannot be a ground to procrastinate hearing of a matter. It
was incumbent on the part of the respondents that after death of the counsel,
some other person should have been engaged, but no one was engaged and
therefore, the proceedings before a Court cannot be kept endlessly pending
for the hearing of the parties and the Court has to proceed as per the
provisions of law. Either to find that this ground of non-getting opportunity,
is not substantial for re-hearing the present Second Appeal. The second
ground that has been raised is that respondent no.2- Safidan Khatoon had
died during pendency of the appeal. It has however fairly been admitted
that no informatory petition regarding this was filed under XXIII Rule 10A
2025:JHHC:10480
of the C.P.C. Unless the information is given, the appellant cannot be
supposed to have taken step for substitution of the parties therefore, on this
score also, the review is not tenable. By the last plea, the counsel has made
an attempt to enter into the merit of the order passed by this Court, which is
impermissible in view of Section 47 of the Civil Procedure Code. This is a
case where a registered sale deed is being challenged by the son and his
legal heirs and representatives on the ground that he had no right to execute
the sale deed as per the Mohammedan Law, since the property was owned
by his father at the time of execution of the sale deed. Even if this plea is
accepted for the reason set out in the judgment, I do not think that the
respondents are entitled to any relief.
Civil Review Petition accordingly, stands rejected. Interlocutory
Application, if any, is disposed of.
(Gautam Kumar Choudhary, J.)
Anit
