Patna High Court
Indra Pratap Singh @ Lalji Babu vs Smt. Rupa Sinha on 7 January, 2025
Author: Nawneet Kumar Pandey
Bench: Nawneet Kumar Pandey
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL REVISION No.117 of 2012
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1.1. Himanshu Singh S/o Late Indra Pratap Singh @ Lalji Babu Resident of
Village- Newaji Tola, P.S- Chhapra Muffasil, District Saran at present
residing at Mohalla Dahiawan,Tola, Shrinandan Path, P.O.- Chhapra, P.S-
Chhapra Nagar, District- Saran, Pin- 841301.
1.2. Rita Singh W/o Late Anshu Kumar Singh Daughter- in- Law, respectively of
Late Indra Pratap Singh @ Lalji Babu, Resident of Village- Newaji Tola,
P.S- Chhapra Muffasil, District Saran at present residing at Mohalla
Dahiawan,Tola, Shrinandan Path, P.O.- Chhapra, P.S- Chhapra Nagar,
District- Saran, Pin- 841301.
1.3. Ridhima Raj Singh D/o Late Anshu Kumar Singh Grand daughter,
respectively of Late Indra Pratap Singh @ Lalji Babu, Resident of Village-
Newaji Tola, P.S- Chhapra Muffasil, District Saran at present residing at
Mohalla Dahiawan,Tola, Shrinandan Path, P.O.- Chhapra, P.S- Chhapra
Nagar, District- Saran, Pin- 841301.
1.4. Kartikay Raj Singh S/o Late Anshu Kumar Singh Grand son, respectively of
Late Indra Pratap Singh @ Lalji Babu, Resident of Village- Newaji Tola,
P.S- Chhapra Muffasil, District Saran at present residing at Mohalla
Dahiawan,Tola, Shrinandan Path, P.O.- Chhapra, P.S- Chhapra Nagar,
District- Saran, Pin- 841301.
... ... Petitioner/s
Versus
1. Smt. Rupa Sinha W/o None Gopal Sinha Mohalla- Yatindra Smriti Dham
No. 147, Gowal Toli Lane, Near Vishalwi Tola, P.O- Huglee, District-
Hooglee, West Bengal.
2. Parth Kumar Yadav S/o Late Ram Janam Rai Resident of Lodhipur Chirand,
P.O- Chirand, P.S- Doriganj, District- Saran.
3. Dev Saran Rai S/O Late Chunni Lal Rai Resident of Village Pozhi Buzurg,
P.O- Pozhi, P.S- Marhaura, District- Saran At Present Residing At
Dahiyawan Tola, Shrinandan Path, P.O- Chapra, P.S- Chapra, District-
Saran.
4.1. Bindu Devi, W/o Late Yaduvansi Rai, Resident of Village - Pozhi Buzurg,
P.O. - Pozhi, P.S. - Marhaura, District - Saran at present residing at
Dahiyawan Tola, Srinandan Path, P.O.- Chapra, P.S. - Chapra Nagar,
District- Saran.
4.2. Dr. Himansu Rai, S/o Late Yaduvansi Rai, Resident of Village - Pozhi
Buzurg, P.O. - Pozhi, P.S. - Marhaura, District - Saran at present residing at
Dahiyawan Tola, Srinandan Path, P.O.- Chapra, P.S. - Chapra Nagar,
District- Saran.
5. Jitendra Rai S/o Sri Yaduvasnhi Rai Resident of Village Pozhi Buzurg, P.O-
Pozhi, P.S- Marhaura, District- Saran at Present Residing At Dahiyawan
Tola, Shrinandan Path, P.O- Chapra, P.S- Chapra, District- Saran.
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
2/17
6. Yasi Lal Rai S/o Late Raghubir Rai Resident of Village- Madarpur At
Present Village- Pozhi Buzurg, P.O- Pozhi, P.S- Marhaura, District- Saran.
... ... Respondent/s
Appearance :
For the Petitioner/s : Mr.Raj Kishore Prasad Singh
Mr. Bal Bhushan Choudhary
For the Respondent/s : Mr. Ankita Roy
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CORAM: HONOURABLE MR. JUSTICE NAWNEET KUMAR
PANDEY
CAV JUDGMENT
Date : 07-01-2025
I have already heard the learned counsel for the
petitioner/plaintiff as well as the learned counsel for the
opposite parties/defendants.
2. This revision application is directed against the
order dated 02.06.2012 passed in Title Suit No. 147 of 2012 by
the 1st Sub-Ordinate Judge, Chapra, Saran.
3. The original petitioner/plaintiff filed an
application under Order XXIII Rule 3 of the Code of Civil
Procedure (for short 'the Code') for withdrawal of the suit with
liberty to file a fresh suit which was rejected by the complex and
composite order, which is impugned herein. It also appears that
vide the same order, the leaned Sub- Ordinate Judge has
disposed of the application filed by respondent no.2 under Order
VII Rule 11 of the Code, praying therein to reject the plaint as it
was barred under Order IX Rule 9 of the Code, but the
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
3/17
impugned order does not disclose explicitly whether that
application was disposed of or not. The operative portion of the
impugned order shows that the suit of the plaintiff was
dismissed and at the same time the application of the
plaintiff/petitioner under Order XXIII Rule 3 of the Code for
withdrawal of the suit with liberty to file a fresh suit was
rejected.
4. The original plaintiff/petitioner Indra Pratap
Singh @ Lalji Babu filed Title Suit No. 147 of 2012 on the basis
of a sale deed executed by late Harihar Chandra Ghosh in
favour of the petitioner on 10.05.2006 in respect of the property
in suit.
5. The case of the petitioner/plaintiff is that the
original tenant of the disputed property late Umesh Chandra
Ghosh had acquired several properties at Chapra from his own
income and he was governed by Dayabhaga School of Hindu
Law. He also acquired properties at Murshidabad, Giridih,
Bhagalpur and Chapra. He acquired a piece of land, measuring
18 katha at Chapra which was situated by the southern side of
the PWD road. The name of late Umesh Chandra Ghosh was
recorded in the Serista of the Ex-landlord. He had two wives.
He had two sons from the first wife and five sons from the
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
4/17
second wife. Umesh Chandra Ghosh died in December, 1944,
leaving behind his above-mentioned seven sons, who inherited
his entire properties. The names of the two sons from the first
wife of Umesh Chandra Ghosh are Sharat Chandra Ghosh and
Suresh Chandra Ghosh. Similarly, the five sons from his second
wife were Shanti Chandra Ghosh, Subodh Chandra Ghhosh,
Sudhir Chandra Ghosh, Basant Chandra Ghosh and Dr. Harihar
Chandra Ghosh (the vendor of the plaintiff/petitioner). Shanti
Chandra Ghosh had two sons namely Prashant Kumar Ghosh
and Bani Brat Ghosh and four daughters namely, Sushma Rai,
Asima, Tripti Mitra (the mother of opposite party no.1) and
Mamta Das. The wife of Prashant Kumar Ghosh is Enachi
Ghosh. They have one son Sukant Ghosh and a daughter Arpita
Ghosh. Bani Brat Ghosh has a son Babu Ghosh and a daughter
Sapra Ghosh. Sushma Rai has two daughters Sutapa Ghosh and
Sumidha. Asma died issueless. Tripti Mishra (also known as
Trapti Mitra) had a daughter Rupa Sinha (opposite party no.1).
Mamta Das has a son Babun. Subodh Chandra Ghosh executed
a sale deed dated 25.03.1953 in favour of his brother Sudhir
Chandra Ghosh and Subodh Chandra Ghosh settled in
Murshidabad.
6. As such, 18 katha of land with two houses
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
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thereon fell into the share of Shanti Chandra Ghosh, Sudhir
Chandra Ghosh, Basant Chandra Ghosh and Dr Harihar
Chandra Ghosh. Jamabandi in respect thereof was created in
their names and Register-II was opened in their names. Shanti
Chandra Ghosh being the elder brother was karta of the joint
family. He was an advocate in Chapra. Sudhir Chandra Ghosh
and Basant Chandra Ghosh were advocates at Patna High Court
and Dr. Harihar Chandra Ghosh was in government service.
These four brothers orally partitioned the said property of 18
katha of the land and two houses standing thereon and the
western house with land under boundary measuring 4 katha 16
¼ dhur bearing House No. 776 under Ward No. 18, Circle No.
16, Mohalla Dhahiawan Tola Chhapra Town, Thana 284 fell into
share of Dr. Harihar Chandra Ghosh. After retirement, Dr.
Harihar Chandra Ghosh returned to Chapra and started residing
in the western house with four katha 16 ¼ dhur land and
renovated the house for the purpose of his medical practice. On
25.05.1985
, a memorandum of partition was executed by the
surviving three brothers and elder son of Shanti Chandra Ghosh
namely Prashant Kumar Ghosh, who became karta of his
branch after the death of his father Shanti Chandra Ghosh. Dr.
Harihar Chandra Ghosh applied for mutation in respect of the
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
aforesaid house on the basis of partition and the Mutation Case
No. 49/86-88 was registered. Mr. Sudhir Chandra Ghosh sent
his no objection in writing to the Vice Chairman, Chapra
Municipality in the said mutation case. Basant Chandra Ghosh
also sent his no objection. The mutation was allowed on
21.12.1987 in favour of Dr. Harihar Chandra Ghosh in respect
of the house No. 776 and Dr. Harihar Chandra Ghosh began to
pay the tax and the tax receipts were granted to him.
7. On 16.05.1995, Sudhir Chandra Ghosh, Basant
Chandra Ghosh and Dr. Harihar Chandra Ghsh jointly filed T.S.
No. 95 of 1995 in the court of Sub Judge-1, Chapra for
injunction restraining the alienation of the suit property by the
other heirs of their elder brother Shanti Chandra Ghosh. During
the pendency of that suit, Dr. Harihar Chandra Ghosh sold the
entire land i.e. 4 katha, 16 dhur and 5 dhuki of Holding No. 776
to the petitioner/original plaintiff. Subsequently, T.S. No. 95 of
1995 was dismissed in default vide order dated 08.01.2008.
Thereafter, the opposite party no.1 filed Eviction Suit No. 04 of
2003 against Harihar Chandra Ghosh, Sukanta Kumar Ghosh,
Enachi Ghosh,Kumari Arpita and Bani Brata Ghosh which was
decreed on 31.01.2012. The judgment and decree dated
31.01.2012 passed in Eviction Suit No. 04 of 2003 was against
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
the dead person (Late Harihar Chandra Ghosh) as he had died
on 30.11.2008, much prior to the judgment and decree of the
Eviction Suit No. 04 of 2003.
8. The petitioner/plaintiff filed an application dated
02.06.2012 under Order XXIII Rule 3 of the Code for
withdrawal of the suit with a liberty to file a fresh suit. As per
the petitioner/plaintiff, the present suit was filed on 28.02.2012
in hot haste because the defendants with their criminal
associates attacked the residential-cum-commercial house of the
plaintiff which is the suit property. On 19.02.2012, with a view
to loot away movables and belongings of the plaintiff's family,
the defendants' side made forcible entry in the house to grab the
same by ousting the family members of the plaintiff forcefully.
The original plaintiff/petitioner was an old man of 71 years and
very much perturbed and disturbed due to criminal offence
committed by the defendants and other accused persons,
regarding which a written FIR was lodged in the police station
but the officer-in-charge of the town police station, Chapra
(Saran), in collusion with the accused persons, did not lodge
the case and due to intervention of the DIG, Chapra Range, the
life, liberty and property of the plaintiff and his family
members could be saved. Under the above-mentioned
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
compelling circumstances, the plaintiff/petitioner could not
instruct his Advocate, Mr. Anand Bihari Srivastava, who drafted
the plaint, nor he could collect and trace out the relevant
documents concerning the suit properties, though most of the
same were available in the house of the petitioner/ plaintiff and
some documents were required to be produced from the
registration office as well as the civil court, Chapra and as a
consequence thereof, several relevant and important facts and
documents could not be mentioned in the plaint. It has been
mentioned that for getting police protection under the
compelling situation, the plaintiff filed CWJC No. 4833 of 2012
in the High Court in which interim order was passed on
29.03.2012. Lastly, the petitioner /plaintiff made a prayer to
withdraw the present suit with a liberty to file a fresh suit in
respect of the present subject-matter of the suit, but that
application was rejected by the impugned order dated
02.06.2012.
9. The learned counsel for the petitioners/plaintiffs,
Mr. Raj Kishore Prasad Singh has submitted that the learned
court below committed illegality in refusing the application for
withdrawal of the suit with a liberty to file a fresh suit. The
petitioner/plaintiff has described the entire facts which were
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
beyond his control that compelled him to withdraw the suit. It
has also been submitted that opposite party no.2 who is a power
of attorney holder of opposite party no.1, filed a petition under
Order VII Rule 11 of the Code with a prayer to reject the plaint.
Though that application has not been disposed of in clear words
and operative portion of the impugned order shows that
application of the plaintiff/petitioner for withdrawal of the suit
was only disposed of but the recitals of the impugned order
shows that the learned trial court while rejecting the application
also dismissed the suit on merit holding that the suit was barred
by the doctrine of lis pendens. It has been mentioned in the
impugned order that the petitioner/plaintiff was aware of the
T.S. No. 95 of 1995 and he also deposed as witness in that suit.
10. The circumstances which are disclosed by the
petitioner/plaintiff in petition dated 02.06.2012 appears to be
beyond the control of the petitioner/plaintiff. The
petitioner/plaintiff has mentioned in that petition that the
defendants with their criminal associates attacked the
residential-cum-commercial house of the petitioner/plaintiff
which is the suit property. They wanted to have an entry in that
house forcibly after ousting the family members of the plaintiff
and the High Court in CWJC No. 4833 of 2012 passed interim
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
order dated 29.03.2012. The suit was filed by the
petitioner/plaintiff in hot haste and some material facts and
documents were left to be mentioned in the plaint. The ground
for withdrawal of the suit with a liberty to file a fresh suit
appears to be genuine one.
11. The learned counsel for the opposite parties
Mr. Binod Kumar Singh has submitted that this revision is not
maintainable because by the impugned order not only the
petition for withdrawal of the suit was rejected, but also the
petition filed by the defendants for rejection of plaint under
Order VII Rule 11 was allowed and as per Section 2(2) of the
Code, the order rejecting the plaint is a decree against which the
statutory remedy of appeal under Section 96 read with Order 41
of the Code, is available.
12. In reply, learned counsel for the
petitioners/plaintiffs has submitted that the submission of the
learned counsel for the opposite parties is not acceptable for the
three reasons. First reason is that bare perusal of operative
portion of the impugned order dated.02.06.2012 makes it clear
that the petition under Order VII Rule 11 of the Code filed by
the opposite party no. 2 was not disposed of but only the
petition for withdrawal of the suit was rejected and the order
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
rejecting the application for withdrawal of the suit is revisable.
As such, this revision is maintainable. The second reason is that
an order passed by a court rejecting the plaint under Order VII
Rule 11of the Code is only a deemed decree, and not a decree
in practical aspects. If the plaint is rejected under Order VII
Rule 11 of the Code, no decree is prepared. So this revision
rejecting the application for withdrawal of the suit under Order
XXIII Rule 3 is maintainable. The third reason is that at the time
of hearing on the point of admission of this revision petition,
both the parties were heard. The point of maintainability was
raised at that time. After hearing both the parties on the point of
admission, a coordinate Bench of this Court admitted this
revision application vide order no.17 dated 17.08.2015. So, the
contention of the opposite parties stood overruled and they
cannot be permitted to raise the question of maintainability of
civil revision application at the final stage of hearing.
For the reasons enumerated above, the point of
maintainability, in my view, cannot be raised at the later stage.
From perusal of the order dated 17.08.2015, it appears that after
hearing the learned counsel for the petitioners as well as the
learned counsel for the opposite parties, the coordinate Bench
of this Court admitted this revision application.
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
13. The learned counsel for opposite parties has
also submitted that the suit filed by the petitioner/plaintiff was
barred under Order IX Rule 9 of the CPC. Late Dr. Hariar
Chandra Ghosh, who was the vendor of the petitioner/plaintiff,
was the plaintiff in Title Suit No. 95 of 1995, which was filed
against the lineal ascendants of opposite party no. 1 and that suit
was dismissed in default on 08.01.2008 and the order dated
08.01.2008 became final as no restoration petition was filed
against that order. The only remedy available against the order
dismissing the suit in default is a restoration application, which
may be filed under the provision of Order IX Rule 9 of the
Code. No such application was filed by the plaintiff or any of
the plaintiffs of Title Suit No. 95 of 1995. The order dated
08.01.2008 is not only binding on the plaintiff of that suit, but
also on the persons who are claiming their rights and title under
the original plaintiff. The present petitioners/plaintiffs claim
themselves to be the vendee(s) of Late Dr. Harihar Chandra
Ghosh, as such, they are equally bound by the order dated
08.01.2008. As per the provisions of Order IX Rule 9 of the
Code, the fresh suit is barred if the earlier suit is dismissed in
default. The learned counsel has further submitted that since the
present suit is barred under Order IX Rule 9 of the Code, the
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
plaint should have been rejected under Order VII Rule 11(d) of
the Code and the learned court below has rightly dismissed the
suit. The learned counsel has submitted that the Hon'ble
Supreme Court in case of M/s Parasram Harnand Rao Vs. M/s
Shanti Prasad Narinder Kumasr Jain, reported in (1980) 3
SCC 565 held that order IX Rule 9 of the Code operates also
against persons claiming under the plaintiff and no fresh suit
lies on the same cause of action.
14. On the other hand, learned counsel for the
petitioners/plaintiffs has submitted that the petitioner/plaintiff
was not a party to the Title Suit No. 95 of 1995. He submits
further that bare perusal of order IX Rule 9 makes it clear that
only the plaintiff is precluded from instituting the fresh suit if
the earlier suit has been dismissed in default. He submitted that
the legislative intent was to preclude only the plaintiff from
bringing a fresh suit and not the persons claiming under the
plaintiff.
Order IX Rule 9 of the Code is being extracted
hereinbelow:-
"9. Decree against plaintiff by default bars
fresh suit.-(1) Where a suit is wholly or
partly dismissed under Rule 8, the plaintiff
shall be precluded from bringing a fresh
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
suit in respect of the same cause of action.
But he may apply for an order to set the
dismissal aside, and if he satisfies the Court
that there was sufficient cause for his non-
appearance when the suit was called on for
hearing, the Court shall make an order
setting aside the dismissal upon such terms
as to costs or otherwise as it thinks fit, and
shall appoint a day for proceeding with the
suit.
(2). No order shall be made under this rule
unless notice of the application has been
served on the opposite party."
15. The learned counsel for the petitioners/plaintiffs has
submitted that the expression "the plaintiff shall be precluded
from bringing a fresh suit" reveals it explicitly that only
plaintiff is precluded from bringing a fresh suit. The learned
counsel has submitted that whenever and wherever the intent of
legislature under the Code was to preclude/debar the plaintiff as
well as the persons claiming under him, it has specifically been
provided in the provision itself in clear words, debarring
plaintiff as well as the person claiming under them. For
example: under Sections 10 and 11 of the Code, not only the
plaintiff but also the persons claiming under him have
specifically been debarred in those Sections. Similar is the
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
position with Section 47 of the Code. The learned counsel has
also relied upon the case of Gopi Ram Bhottica Vs. Jagarnath
Singh and others reported in AIR 1929 Patna 685 (D.B.) and
submitted that in that case the former suit was dismissed in
default and the plaintiff sold the suit property and the petitioner
applied for restoration under Order IX Rule 9 of the Code which
was dismissed. The purchaser filed appeal in the High Court
which was also dismissed. The said purchaser sold the same
property to another purchaser who filed a fresh suit in which the
plea raised by the defendants that the suit was barred under
Order IX Rule 9 of the Code, was negatived by the Hon'ble
Division Bench of this Court.
He submitted further that the decision in case of
M/s Parasram Harnand Rao (supra) relied upon by the
opposite parties is not applicable in this case. In that case,
respondent no.1 had filed a suit for declaration of his tenancy
rights which was dismissed for default. He filed restoration
application, which was also dismissed and the appeal was also
dismissed. Subsequently, the same respondent no.1 filed an
application under Section 25 of the Delhi Rent Control Act,
1958 and in that proceeding, a plea of bar of Order IX Rule 9 of
the Code was taken. So, the proceeding in both the cases was
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
between the same plaintiff, but so far as the present case is
concerned, the present plaintiff is the vendee of the plaintiff of
earlier case.
The learned counsel for the plaintiffs/petitioners
has submitted further that Title Suit No.95 of 1995 was filed for
a relief of permanent injunction and not for title. So far as the
present case is concerned, the plaintiff has claimed a declaration
for his title and for this reason also, there shall not be
applicability of bar of Order IX Rule 9 of the Code.
16. The expression "the plaintiff shall be
precluded from bringing a fresh suit", used in Order IX Rule
9 of the Code, makes it clear that the plaintiff is debarred from
bringing a fresh suit if the earlier suit is dismissed in default and
not any other person including the person claiming under the
plaintiff is debarred. In this way, the present suit is not barred
under Order IX Rule 9 of the Code.
17. As already discussed, the circumstances
disclosed by the petitioner/plaintiff for withdrawal of the suit
were beyond the control of the petitioner/plaintiff.
18. In my view, the impugned order dated
02.06.2012, whereby the petition under Order XXIII Rule 3 of
the Code filed by the petitioner/plaintiff was rejected is not
Patna High Court C.R. No.117 of 2012 dt.07-01-2025
sustainable in the eye of law.
19. Accordingly, the order dated dated 02.06.2012
passed in Title Suit No. 147 of 2012 by the 1st Sub-Ordinate
Judge, Chapra, Saran is set aside. The petition filed by the
petitioner/plaintiff under Order XXIII Rule 3 of the Code for
withdrawal of the title suit with liberty to file a fresh suit is
allowed.
20. Consequently, this civil revision application is
allowed.
(Nawneet Kumar Pandey, J)
HR/-
AFR/NAFR NAFR
CAV DATE 04.03.2024
Uploading Date 08.01.2025
Transmission Date
