Patna High Court - Orders
Smt.Savitiri Devi vs Ranganath Tiwary on 6 January, 2011
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
FA No.504 of 1985
SMT.SAVITIRI DEVI
Versus
RANGANATH TIWARY@ BHAIYA SAHEB
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22. 06.01.2011. Heard the parties on the Interlocutory application No.9313 of 2010.
Counter affidavit has been filed by Smt. Saroj Dwivedi. A reply to the said counter affidavit has been filed by the appellant.
This Interlocutory Application No.9313 of 2010 has been filed for recall of the order dated 03.09.2010 passed by me whereby the application filed by Smt. Saroj Dwivedi is allowed and she has been substituted in place of the sole respondent, Rangnath Tiwary.
The learned counsel, Sri. R.K.P. Singh appearing on behalf of the appellant submitted that without hearing the appellant, the order has been passed on 03.09.2010. According to the learned counsel, even no copy of the said interlocutory application being I.A. No.7557 of 2010 was served on the appellant and the other I.A. No.7685 of2010 filed by Laxmi Devi and Ors. was also not served on him and the said order was passed.
From perusal of the said order dated 03.09.2010, it appears that on that day, nobody appears on behalf of the appellant, although the 4 interlocutory applications were listed under the heading for Orders on Petition. From perusal of the said order, it appears that the name of Smt. Saroj Dwivedi has 2 been substituted on the ground that the legal representatives of the sole respondent appeared and stated that since the property was gifted by Rangnath Tiwary in favour of late Sri Ravishankar Dwivedi and during the pendency of this First Appeal, late Sri Ravishankar Dwivedi filed an application for being substituted in place of Rangnagh Tiwary but no order could be passed on the said application and prior to passing any order, he died and, therefore, Smt. Saroj Dwivedi appeared and filed interlocutory application No.7557 of 2010. After hearing the learned counsel appearing on behalf of the legal representatives of sole respondent and the learned counsel appearing on behalf of Smt. Saroj Dwivedi, the said order dated 03.09.2010 has been passed.
Mr. R.K.P. Singh, appearing on behalf of the appellant submitted that in no case, Smt. Saroj Dwevedi would have been substituted in place of Rangnath Tiwary as she is neither legal representative of Rangnath Tiwary nor she is heir of the Rangnath Tiwary. The learned counsel further submitted that the partition suit was filed by Rangnath Tiwary including the property of Bihar and also property of U.P. Because of Notification under Section 3 of the Consolidation Act, the suit so far property of Bihar is concerned was abated and the partition suit proceed so far, it relates to the property of U.P. and the sole respondent, Rangnath Tiwary allegedly gifted only the property of Bihar and not of U.P. and because the suit proceeded with regard to the property of U.P. the 3 subject matter of the suit never devolved upon late Sri Ravishankar Dwivedi and, therefore, on the ground of gift alleged to have been executed by Rangnath Tiwary, she could not have been substituted.
The learned counsel for the appellant further submitted that the appellant filed substitution application being I.A. No.827 of 2007 and the legal representatives of the deceased Rangnath Tiwary have already appeared and according to law, they should have been substituted because it is for them to contest or not contesting the Appeal.
However, after some argument, both the parties conceded to the fact that instead of disposing of this application, i.e., I.A. No.9313 of 2010, the Appeal itself may be heard finally. However, as jointly prayed for by the appellant and as agreed by the respondent, i.e., the legal representatives of deceased respondent Rangnath Tiwary/heirs are also substituted in place of sole respondent Rangnath Tiwary in addition to the substitution order dated 03.09.2010. The legality or otherwise of the order dated 03.09.2010 shall also be considered alongwith this interlocutory application No.9313 of 2010 at the time of final hearing of this First Appeal regarding the question as to whether Smt. Saroj Dwivedi would have been substituted or not.
The learned senior counsel, Mr. Shashi Shekhar Dwivedi appearing on behalf of Smt. Saroj Dwivedi and Mr. 4 Ranjan Kumar Dubey appearing on behalf of the legal heirs of sole deceased respondent Rangnath Tiwary undertake that they will not proceed in the Court below with regard to the suit property till the disposal of the Appeal.
As jointly prayed for by the parties, list this First Appeal without the paper book under the heading for Hearing on 12.01.2011 as first case even above the part heard cases. It is made clear here that this order is passed on the undertaking given by the learned counsel, Mr. R.K.P. Singh appearing on behalf of the appellant as well as learned senior counsel, Mr. Kamal Nayan Chaubey appearing on behalf of the respondent and Mr. Ranjan Kumar Dubey appearing on behalf of the sole heirs of Rangnath Tiwary that they will not pray for any adjournment in this Appeal and the Appeal shall be heard continuously till the hearing is concluded. It is also made clear that if any party prays for time, this order shall automatically be recalled.
( Mungeshwar Sahoo, J.) Sanjeev/-