Patna High Court - Orders
Chatra Devi & Ors vs Smt.Ram Sakhi Devi & Ors on 28 August, 2014
Author: Kishore Kumar Mandal
Bench: Kishore Kumar Mandal
IN THE HIGH COURT OF JUDICATURE AT PATNA
Second Appeal No.244 of 1988
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Chatra Devi & Ors
.... .... Appellant/s
Versus
Smt.Ram Sakhi Devi & Ors
.... .... Respondent/s
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CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR
MANDAL
ORAL ORDER
52 28-08-2014Re. I.A. No. 7399 of 2012 Heard Mr. Bamdeo Pandey learned counsel who claimed to represent the appellant nos. 2 and 6, Mr. Radha Krishna Singh learned counsel who also claimed to have appeared on behalf of appellant nos. 2 and 6 and Mr. Udit Narayan Singh learned counsel for the respondent no.1 This Court on consideration of the said Interlocutory Application on 13.8.2014 while appreciating the submissions of the parties, observed/noted as under:-
"Interlocutory Application being I.A. No. 7399 of 2012 requires consideration and disposal. On going through the averments made therein two questions primarily require adjudication. Firstly, whether Mr. Radha Krishna Singh learned advocate was competent to appear on behalf of the appellant Nos. 2 and 6 and file I.A. No. 6851 of 2012 which was considered and allowed by this Court under order dated 15.10.2012. Secondly, whether the date on which the order dated 15.10.2012 was passed any application seeking substitution of appellant nos. 1,3,4 and 5 was pending consideration.Patna High Court SA No.244 of 1988 (52) dt.28-08-2014 2/6
Be it noted that stand of Mr. Udit Narayan Singh learned counsel for the respondent no.1 is that the said Interlocutory Application being I.A. No. 4219 of 2012 was considered and rejected as not maintainable under order dated 01.08.2012 having been filed supported by an affidavit affirmed by respondent no.2."
Appellants herein were plaintiffs. The suit was filed by the plaintiffs for declaring that the respondent had no manner of right, title and interest in the suit land. The suit was decreed. Aggrieved thereby the defendant filed appeal which was allowed. Assailing the judgment and decree of the appellate Court, plaintiffs filed the present appeal. Bt it noted that the original plaintiff was Isharaj Narayan Singh (quoted as Isharaj Singh). The appellants in the present appeal are/were the heirs and legal representatives of the original plaintiffs. There is no dispute that during the pendency of the appeal appellant nos. 1,3 4, and 5 died. The appellants were then represented through Mr. Tarkeshwar Prasad Verma, advocate. A substitution petition vide I.A. No. 4219 of 2012 was filed through Mr. Tarkeshwar Prasad Verma. This Court considering the fundamental flaw/defect in the said application dismissed the same vide order dated 01.08.2012. The appellant nos. 2 and 6, therefore, remained as the appellants of the present appeal. Mr. Radha Krishna Singh appeared on Patna High Court SA No.244 of 1988 (52) dt.28-08-2014 3/6 behalf of the appellant nos. 2 and 6 through „Vakalatnama‟ and filed an application being I.A. No. 6851 of 2012 seeking permission of the Court to withdraw the appeal which was allowed vide order dated 15.10.2012. Be it noted that this Court by order dated 5.9.12 had accepted the „Vakalatnama‟ filed by Mr. Radha Krishna Singh on behalf of the appellant nos. 2 and 6 having recorded that Mr. Tarkeshwar Prasad Verma had no objection to it. In such circumstance, I.A. No. 7399 of 2012 was filed under Section 151 of the CPC for recall of order dated 15.10.12. This Court, having noticed that earlier on the request of Mr. Verma his „Vakalatnama‟ was treated as cancelled/withdrawn vide order dated 5.12.2012 issued notice in the present application to the surviving appellants as well as the respondents. An affidavit in response to the said notice was filed affirmed by appellant no.2 (Baleshwar Singh) as well as appellant no.6( Bidyawati Devi). Be it noted that the reply/counter affidavit was filed through Radha Krishna Singh, learned advocate. On perusal whereof, it appears that the appellants accepted that Mr. Radha Krishna Singh was authorized to appear on behalf of the appellant nos. 2 and 6 but they had not given any consent for withdrawal. Mr. Bamdeo Pandey thereafter started appearing in support of I.A. No. 7399 of 2012 on behalf of the remaining appellants presumably on the Patna High Court SA No.244 of 1988 (52) dt.28-08-2014 4/6 instruction of Mr. Tarkeshwar Prasad Verma. It has been contended that such withdrawal of appeal could not have been allowed without the consent and approval of the co- appellants. He has relied in this regard on Order 23 Rule 5 of the CPC.
Per contra, Mr. Radha Krishna Singh learned counsel has contended that the „Vakalatnama‟ filed on behalf of the appellant nos. 2 and 6 filed by him was accepted by this Court insomuch so Mr. Tarkeshwar Prasad Verma who had initially appeared on behalf of the appellants had also recorded his no objection which was recorded by this Court. In such view of the matter, Mr. Pandey cannot appear on behalf of the surviving appellants particularly when he has appeared in this appeal on behalf of some of the respondents. To this Mr. Pandey stated that after withdrawal of the „Vakalatnama‟ on behalf of Mr. Tarkeshwar Prasad Verma, Mr. Jitendra Pandey, an advocate filed fresh „Vakalatnama‟ on behalf of the appellant nos. 2 and 6 and therefore on instruction of Mr. Jitendra Pandey he has appeared in support of the present application.
Mr. Udit Narayan Singh learned counsel for the respondent no.1 has submitted relying on (2008)2 SCC 507 [Ajay Mohan & Ors. Vs. H.N. Rai & Ors.] that once an application seeking withdrawal of the appeal has already been considered and Patna High Court SA No.244 of 1988 (52) dt.28-08-2014 5/6 allowed this Court has become functus officio.
I have heard the parties.
One fact is evident from the narration of facts made hereinabove that appellant nos. 1,3, 4 and 5 had already died during the pendency of the appeal. An application seeking substitution of the heirs and legal representatives of those appellants were filed which was considered and rejected. There was no any such application pending before this Court seeking substitution of those appellants. In the eye of law, therefore, only appellant nos. 2 and 6 survived who were prosecuting the appeal. Mr. Udit Narayan Singh has contended that in absence of the other appellants the appeal is bound to fail as no effective relief can be granted to the respondents inasmuch as the judgment and decree of the learned lower appellant Court stood confirmed in so far as those appellants are/were concerned. The appeal has become incompetent and is bound to fail. This Court, for the present, is concerned with I.A. No. 7399 of 2012 in which a prayer for recall/setting aside of the order dated 15.10.2012 has been made. On perusal of the facts evidencing from the record there can be no dispute that Mr. Radha Krishna Singh was accepted as the counsel for the surviving appellants. Upon notice in the present application an affidavit has been filed on behalf of the appellants Patna High Court SA No.244 of 1988 (52) dt.28-08-2014 6/6 affirming the fact that Mr. Radha Krishna Singh had power to appear on behalf of them in the present appeal. This Court had also accepted him as the counsel representing the surviving appellants. The application filed through Sri Radha Krishna Singh on behalf of the appellant nos. 2 and 6 having been accepted, this Court has become functus officio. The appeal, as on today, in the eye of law does not survive. If that be the case then how this Court can entertain any such prayer as made through the Interlocutory Application.
For all these reasons, this Court does not find any merit in the present Interlocutory Application, which is, accordingly, dismissed.
In the light of the order dated 15.10.2012 the present appeal now stand consigned.
(Kishore Kumar Mandal, J) Shyam/-
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