Patna High Court
Geeta Devi vs Manoj Singh on 27 February, 2025
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.1184 of 2019
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1. Geeta Devi, W/o Late Ramesh Singh,
2. Amit Kumar Singh S/o Late Ramesh Singh
3. Amrendra Singh S/o Late Ramesh Singh
All are residents of village- Banchahari, P.O.- Parsa, P.S.- Bagaha, District-
West Champaran
... ... Petitioner/s
Versus
1. Manoj Singh, S/o Late Dharmdeo Singh,
2. Pramod Singh S/o Late Dharmdeo Singh
Both are residents of village- Banchahari, P.O.- Parsa, P.S.- Bagaha, District-
West Champaran
3. Sanjay Kumar S/o Dharmdeo Singh (Now Died), resident of village-
Banchahari, P.O.- Parsa, P.S.- Bagaha, District- West Champaran
4. Vijay Kumar Singh, S/o Dharmdeo Singh, resident of village- Banchahari,
P.O.- Parsa, P.S.- Bagaha, District- West Champaran
5. Anish Ahmad, S/o Rasid, Resident of Gali No. 2, Naznin Chauk, P.O. and
P.S.- Bettiah Town, Distt.- West Champaran
6. Nasar Ahmad S/o Late Abdul Rasid, Resident of Gali No. 2, Naznin Chauk,
P.O. and P.S.- Bettiah Town, District- West Champaran
7. Sabir Ahmad, S/o Late Abdul Rasid, Resident of Gali No. 2, Naznin Chauk,
P.O. and P.S.- Bettiah Town, District- West Champaran
8. Ishtakha Ahmad, S/o Late Abdul Rasid, Resident of Gali No. 2, Naznin
Chauk, P.O. and P.S.- Bettiah Town, District- West Champaran
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr.Shiv Kumar Dwivedy, Advocate
For the Respondent/s : Mr.Zainul Abedin, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 27-02-2025
Heard learned counsel for the petitioners and
learned counsel for the respondent nos. 1, 2 & 4.
2. The petitioners are aggrieved by the order dated
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
2/7
11.09.2018
passed by the learned Sub Judge-II, Bagaha, West
Champaran in Title Suit No. 13 of 2004 whereby and
whereunder altogether seven petitions filed on behalf of the
petitioners were disposed of without any favourable order.
3. The learned counsel for the petitioners submits
that the impugned order is bad in the eyes of law and has been
passed in a mechanical manner. The learned counsel further
submits that one Ramesh Singh, the husband of the petitioner
no. 1 and the father of the petitioner nos. 2 and 3 filed Title Suit
No. 13/2004 before the learned Sub Judge-II, Bagaha against
the defendants for specific performance of contract on
29.03.2004. The defendants appeared and filed their written
statement. During pendency of the suit, sole plaintiff fell
seriously ill and died on 03.05.2011. Thereafter, the legal heirs
of the plaintiff got themselves impleaded in his place. One
Dharmdeo Singh, defendant no.1, died on 22.06.2011 and as the
petitioners got the knowledge about the death of defendant no.1,
the plaintiffs/petitioners immediately filed a substitution petition
on 23.07.2011, which was allowed by the learned trial court on
05.08.2011. Thereafter, Tetari Devi, the wife of Dharmdeo
Singh, died on 08.05.2015 and the plaintiffs/petitioners again
filed a petition for deleting the name of the deceased defendant
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
Tetari Devi from the column of defendants stating that her legal
heirs were already on record as parties. The said application for
deletion was allowed vide order dated 29.05.2015 by the learned
trial court. The learned counsel further submits that Sanjay
Singh, defendant no. 2, the son of Dharmdeo Singh and Tetari
Devi, also died and vide order dated 25.10.2010, the learned
trial court abated the suit against the defendant no.2, but this
was done prior to the appearance of the substituted plaintiffs in
the present case. The plaintiffs have no knowledge about the
death of Sanjay Singh till orders were passed on 29.05.2015.
Thereafter, the plaintiffs/petitioners immediately filed
substitution petition, petition for recall of abatement order along
with limitation petition on 23.06.2015. A petition was also filed
for making amendment in the plaint as it has been found that
mistake has occurred in describing the boundary in Schedule II.
This petition was also filed on 23.06.2015. All the petitions
were dismissed vide order dated 29.01.2018 by the learned trial
court for default due to non-prosecution by the
plaintiffs/petitioners. The learned counsel further submits that
due to negligence on the part of the learned counsel appearing
on behalf of the plaintiffs/petitioners, instead of seeking recall
of the order dated 29.01.2018, separate applications have been
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
filed with the same prayer for setting aside the abatement
against defendant no.2 and substitution of heirs/legal
representatives of deceased defendant no. 2 Sanjay Singh. The
learned counsel further submits that the learned trial court has
passed the orders mechanically and without considering the fact
that earlier no application was moved prior to passing of the
order dated 25.10.2010 for setting aside the abatement and it
was only observation of the court that since no application was
filed for setting aside abatement for defendant no. 2, the suit
stands abated against him. The learned counsel further submits
that orders dated 04.05.2015 and 29.05.2015 are altogether on
different aspects and are not concerned with setting aside of the
abatement for defendant no.2 as the order dated 29.05.2015 is
concerned with deletion of the name of Tetari Devi and the
order dated 04.05.2015 was on some other matters. So, there is
apparent error of record in passing the impugned order. The
learned counsel further submits that the learned trial court has
not considered that the petitioners came on record after death of
the original plaintiff and they were not having knowledge about
the death of defendant no.2. Further due to lack of knowledge or
negligence on the part of the learned counsel appearing on
behalf of plaintiffs/petitioners, the petitions have been filed on
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
which the impugned order dated 11.09.2018 has been passed,
whereas proper course should have been for setting aside the
order dated 29.01.2018 and, thereafter, no any application. The
learned counsel further submits that in any case the impugned
order suffers from error of record and could not be sustained.
4. Per contra, learned counsel appearing on behalf
of the respondent nos. 1, 2 and 4 vehemently opposes the
submission made on behalf of the petitioners. The learned
counsel submits that once the application filed by the petitioners
for setting aside the abatement has been dismissed for default,
no further application could be maintained. The learned counsel
further submits that the petitioners want to linger on the matter
and for this reason they have been filed these types of
applications. The learned counsel further submits that the
petitioners were ill-advised in filing the application dated
23.06.2015 to recall the order dated 25.10.2010, instead of filing
application under Order 22 Rule 9 of the Code of Civil
Procedure for setting aside the abatement and further mistake
was committed in not seeking the recall of the order whereby
and whereunder the application dated 23.06.2015 was dismissed
for default vide order dated 29.01.2018. Thus, learned counsel
submits that the learned trial court has not committed any
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
illegality or irregularity in passing the impugned order.
5. Perused the record.
6. Having regard to the submission made on behalf
of the parties, it becomes clear that there has been some error on
record in passing the impugned orders since the learned trial
court did not discuss the orders dated 25.10.2010, 04.05.2015
and 29.05.2015 and merely disposed of the applications without
any discussion and without considering the fact that whether the
orders mentioned in the impugned order were relevant for the
purpose of disposal of the applications filed on behalf of the
petitioners or not.
7. Therefore, without further going into the merits of
the case, the impugned order dated 11.09.2018 passed in Title
Suit No. 13/2004 by the learned Sub Judge-II, Bagaha, West
Champaran is set aside and the matter is remanded to the
learned trial court for passing speaking order afresh on the
petitions mentioned in the impugned order dated 11.09.2018,
within a period of one month from the date of receipt/production
of a copy of this order.
8. The learned trial court is also directed to take up
the Title Suit No. 13/2004 for disposal as expeditiously as
possible since it is an old matter.
Patna High Court C.Misc. No.1184 of 2019 dt.27-02-2025
9. With the aforesaid observations and directions,
the present petition stands allowed.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.02.2025
Transmission Date NA
