Patna High Court - Orders
Raj Kumari Devi & Anr vs Murali Singh & Ors on 28 April, 2011
Author: Birendra Prasad Verma
Bench: Birendra Prasad Verma
IN THE HIGH COURT OF JUDICATURE AT PATNA
C.R. No.241 of 2008
1. RAJ KUMARI DEVI wife of Shri Amarnath Singh
2. Shiv Kumari Devi wife of Shri Birendra Kumar Singh,
Both residents of village-Sahbajpur, P.S. Mohania, Distt.
Kaimur (Bhabhua)
...............Plaintiffs/Petitioners
Versus
1. Murali Singh |
2. Jagdish Singh | all sons of Late Ram Raj Singh
3. Ram Akbal Singh |
4. Naurangi Widow of Late Ram Raj Singh
5. Chaturgun Singh |
6. Bhola Singh | all sons of Late Ram Neur Singh
7. Brij Nandan Singh |
8. Radhey Shyam Singh|
All residents of village and Post-Sahbajpur, P.S.
Mohania, Distt.- Kaimur (Bhabhua).
...................Defendants-Opposite Parties.
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For the petitioners : Mr. Anjani Kumar Sinha No.1, Adv.
For the O.P. : Mr. Mahesh Prasad No.2, Adv.
Nos.1 to 3 & Mr. Rewti Kant Raman, Adv.
5 to 8. Mr. Gopal Sharan, Adv.
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ORDER
B.P. Verma, J.Heard Mr. Anjani Kumar Sinha, learned counsel, appearing on behalf of the petitioners, and Mr. Mahesh Prasad, learned counsel, appearing on behalf of the opposite parties at length on different dates.
2. Admittedly, the present civil revision application is barred by limitation, having been filed on 8.2.2008 against the order dated 10.08.1999 passed by learned Sub-judge-V, Sasaram. Therefore, I.A. No. 919 of 2008 under section 5 2 read with section 14 of the Limitation Act, 1963 (in short Limitation Act) has been filed on behalf of petitioners with a prayer to condone the delay in filing the present civil revision application. By an order dated 4.3.2008, the limitation matter was directed to be considered at the time of hearing of the civil revision application at the admission stage. By an order dated 9.12.2009 passed in the present proceeding, notice was ordered to be issued to the opposite parties in main civil revision application as also in the limitation matter (I.A. No. 919 of 2008). Notices have been validly served upon the opposite parties and in response to notice, opposite party nos. 1 to 3 and 5 to 8 have appeared through a lawyer by filing their duly executed Vakalatnama and are resisting the prayer made on behalf of the petitioners in the civil revision application as also in the limitation matter. Hence, with the consent of the parties, the main civil revision application as also limitation matter have been taken up together for consideration and are being disposed of by this common order.
3. The present civil revision application has been filed by the plaintiffs-petitioners challenging the validity and legality of order dated 10.08.1999 passed in Title Suit No. 135 of 3 1969, by learned Sub-Judge-V, Sasaram, whereby it has been held that the aforesaid suit is not maintainable.
4. The short facts relevant for the purpose of determining the issues involved in the present application are portrayed hereinbelow: The plaintiffs-petitioners brought Title suit no. 135 of 1969 in the court of learned Sub Judge, Sasaram seeking a decree for partition of the suit properties. During the pendency of the aforesaid title suit, a notification under section 3 of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as the Consolidation Act) was issued by the competent authority with respect to the area concerned, where the suit properties are situate. In view of the issuance of aforesaid notification, a petition was filed by the defendants-opposite parties that suit should abate in terms of Section 4 (c) of the Consolidation Act. After hearing the parties the suit was ordered to have abated by an order dated 06.01.1978 (Annexure-6 to the supplementary affidavit) passed by learned 3rd Subordinate Judge, Sasaram.
5. It is admitted case of the parties that the plaintiffs and defendants are descendants of their common ancestor namely Lochan Singh and during the pendency of the suit 4 an order was passed by the Consolidation Officer, Mohania in terms of Section 10 (4) of the Consolidation Act directing therein that the status quo shall be maintained with respect to the entries made in the records of right in favour of the parties regarding the suit land. Defendants opposite parties preferred an appeal under section 10 (6) of the Consolidation Act, where they succeeded. Revision application filed by the petitioners under section 35 of the consolidation Act was rejected. Thereafter, they came before this court and filed CWJC No. 3343 of 1989, which was dismissed with certain observations by a Division Bench of this Court by an order dated 2.4.1990(Annexure-
1), which is being reproduced hereinbelow:
"3-2.4.90. No one appears for the petitioners.
This case involves a pure question of title. This court has already held in Kalika Kuar @ Kalika Singh (1989 P.L.J.R. 1203) that a pure question of title can be raised in a civil court notwithstanding any finding recorded by consolidation courts. It will not be possible for this court to determine dispute of title without adverting to the evidence which one or the other party may have to adduce. If so advised, the petitioners may seek remedy before the civil courts. This application is dismissed"5
6. Learned counsel for the petitioners submits that in the light of the aforesaid observation made by a Division Bench of this court, on legal advice, the petitioners filed Title Suit No. 119 of 1993 in the court of learned Sub Judge, Bhabhua, in view of partition of the existing district of Rohtas and creation of a new district of Kaimur (Bhabhua), seeking a decree of partition of the suit properties. While aforesaid Title suit no. 119 of 1993 was pending, on legal advice, the petitioners filed a petition dated 22.8.1997 (Annexure-2)before the learned Sub Judge III, Sasaram, (Rohtas) in Title Suit No. 135 of 1969 for revival of the suit and for deciding the same, after recording the evidence of the parties. In view of the aforesaid prayer made on behalf of the plaintiffs-petitioners, by an order dated 22.08.1997 itself a copy of the petition was directed to be served on the other side. Finally by an order dated 01.09.1997 (Annexure-3), learned Sub Judge allowed the petition dated 22.08.1997(Annexure-2) and records of Title suit No. 135/1969 was directed to be called for. In the submissions of learned counsel for the petitioners, since the petition dated 22.08.1997 was allowed under order dated 01.09.1997 (Annexure-3), the aforesaid Title suit No. 135 of 1969 6 stood restored to its original file and that was required to be adjudicated on its merit. It is also contended that in view of restoration of Title Suit no. 135 of 1969, a petition was filed on behalf of plaintiffs-petitioners on 28.4.1998 under Order 23 Rule 1 of Code of Civil Procedure(in short C.P.C.) for withdrawal of Title Suit no. 119 of 1993/30 of 1998. After hearing the parties, learned Sub Judge-V, Bhabhua by an order dated 25.05.1998 (Annexure-4) permitted the plaintiffs- petitioners to withdraw that suit with a condition that they are precluded from instituting a fresh suit with respect to the suit properties. The relevant portion of the order dated 25.05.1998 is reproduced hereinbelow:
"To my mind the plaintiff is at liberty to withdraw the suit when ever he likes. Considering the circumstances of the case I find nothing to disallow the plaintiff's prayer. Hence the prayer for withdrawal is allowed. The plaintiffs are precluded from instituting fresh suit in respect of the subject matter of the suit or part there of."
7. Thereafter, a petition was filed on behalf of defendants -opposite parties in Title suit no. 135 of 1969/68 of 1998 on 14.07.1999 (Annexure-5) praying therein that in view of order dated 25.05.1998(Annexure-4) passed in Title suit no. 119 of 1993/30 of 1998, the present suit should be 7 held to be not maintainable and the suit should be dismissed . After hearing the parties on the petition dated 14.07.1999 (Annexure-5) filed by defendants opposite parties, learned Sub Judge has passed the impugned order holding therein that the present suit is not maintainable. Hence the present civil revision application.
8. Mr. Anjani Kumar Sinha, learned counsel appearing on behalf of the petitioners, has submitted that against the impugned order dated 10.8.1999 passed by learned Subordinate judge, Sasaram, in fact, a revision application under section 115 C.P.C. ought to have been filed on behalf of the petitioners, but under a wrong legal advice, civil Miscellaneous Appeal No. 12 of 1999 was filed on their behalf on 31.8.1999 before the learned District Judge, Kaimur at Bhabhua and that appeal was admitted for final hearing. No objection was raised regarding maintainability of the aforesaid appeal, even by the defendants-opposite parties herein. However, subsequently defendants filed a petition on 5.4.2004 in that appeal for its abatement in terms of section 4(c) of the Consolidation Act. Learned IInd Additional District Judge, Bhabhua, who was in seisin of the aforesaid appeal, passed an order of 8 abatement of that appeal on 10.07.2004. The plaintiffs- petitioners herein, being aggrieved by the aforesaid order dated 10.7.2004 preferred civil revision No. 1374 of 2004 before this Court on 7.10. 2004, well within the statutory period of limitation. Subsequently, in the aforesaid civil revision application notices were issued to the opposite parties in admission matter and when finally aforesaid civil revision application was taken up for its consideration and final disposal by a Bench of this Court, then it was held that appeal preferred by the petitioners under Order 43 Rule 1 C.P.C. before learned District Judge against the impugned order dated 10.8.1999 was not maintainable. Therefore, the aforesaid civil revision application was disposed of by an order dated 15.1.2008 with a liberty to the petitioners to take other recourse, if permissible in law. The order dated 15.1.2008 passed in civil revision No. 1374 of 2004 has been brought on record as Annexure-1 to I.A. No. 919 of 2008. It is further submitted that in the light of the observation made by this Court, referred to above, the present civil revision application has been filed challenging the original impugned order dated 10.8.1999 passed in Title Suit No. 135 of 1969, whereby it was held that aforesaid 9 suit was not maintainable on the ground mentioned there in that order. It is contended on behalf of the petitioners that in the factual back drop of the case, I.A. No. 919 of 2008 has been filed under section 5 read with section 14 of the Limitation Act. According to learned counsel, there is no deliberate laches and negligence on the part of the petitioners in prosecuting the present litigation, rather limitation has occurred due to wrong legal advice, and for that the plaintiff-petitioners, who are ladies of rural back ground, may not be allowed to suffer.
9. Mr. Sinha, learned counsel, on merit of the civil revision application, submitted that it is true that by virtue of order dated 25.05.1998 passed in Title suit no. 119 of 1993/30 of 1998, petitioners were precluded from bringing any fresh suit, with respect to the suit properties, but the present suit, filed on behalf of plaintiffs- petitioners as far back as in the year 1969, will not be governed by the aforesaid order dated 25.05.1998. In his submission, the present suit is not a fresh suit, rather a suit, filed previously in the year 1969 and that stood revived by order dated 1.09.1997 (Annexure-3), much prior to the order having been passed on 25.05.1998(Annexure-4) in Title suit no. 10 119 of 1993. He has further submitted that on plain perusal of impugned order dated 10.8.1999, it is apparent that learned court below has not considered the merit of the claims of the respective parties. There has been no adjudication regarding the dispute of share of the parties with respect to the suit properties. There is nothing to show on the record that even issues were framed in the title suit by the learned trial court. Apparently evidence on behalf of the parties has neither been recorded by the learned trial court nor it has been discussed at all in the impugned order. Rights of the parties have not at all been determined in the suit. This is not even a case of rejection of the plaint. Rather on complete misinterpretation of order dated 25.5.1998 passed in Title Suit No. 119 of 1993, the present suit of the year 1969 has been held to be not maintainable. Therefore, according to the learned counsel for the petitioners, by no stretch of imagination, the order impugned can be treated to be a decree under the meaning of Section 2(2) C.P.C. Hence according to him, the present civil revision application is maintainable. In support of his contention, learned counsel for the petitioners has placed reliance on the following judgments:
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(i) Rameshwar Thakur and Others Vs. Neeraj Kumar Thakur and Others, reported in 1996 (1) All PLR 80 (D.B.).
(ii)Sheodan Singh Vs. Daryao Kunwar, reported in AIR 1966 SC 1332.
(iii) Ratan Singh Vs Vijay Singh & others , reported in (2001) 1 SCC 469=AIR 2001 SC 279.
10. Mr. Mahesh Prasad, learned counsel, appearing on behalf of the opposite parties, has vehemently opposed the prayer made on behalf of the petitioners and has submitted that the impugned order deciding the suit finally, having been held to be not maintainable, would come within the definition of decree under section 2 (2) of the Code of Civil Procedure. In his submission, suit having been finally disposed of by the impugned order, the present civil revision application is not maintainable. According to him, if the petitioners are at all aggrieved, then in that case, they are entitled to file an appeal. He further submitted that the petitioners obtained the order dated 01.09.1997 in the present suit, by suppressing some material facts and copy of the petition filed on behalf of the plaintiffs petitioners for restoration of suit was also not served upon them, despite order having been passed by the learned Sub Judge. He next submits, that even if the petition dated 22.08.1997 filed on 12 behalf of the plaintiffs petitioners was allowed by an order dated 01.09.1997 (Annexure-3), even then it can not be treated that the Title suit no. 135 of 1969 has been restored to its original file. According to him, a notification under section 26 A of the Consolidation Act has not been issued, therefore, it would be deemed that consolidation proceeding has not come to an end, and learned Sub Judge could not have restored the suit to its original file. In support of his contention, he has placed reliance on the following judgments:
(i) Brahmdeo Prasad v. Baldeo Prasad and others, reported in 1998 (3) PLJR 486.
(ii) Abhinandan Jha @ Abhed Jha and Anr v Anant Mishra and others, reported in 2002 (2) PLJR 701.
(iii) SK. Junarbi v. SK. Mahmood & others, reported in 2002 (4) PLJR 138.
(iv) Consolidated Engineering Enterprises Vs Principal Secretary, Irrigation Department, reported in (2008) 7 SCC 169
(v) S. Satnam Singh Vs Surender kaur, reported in (2009)2 SCC 562= AIR 2009 SC 1089.
11. After having heard the parties at length, on consideration of materials available on record and after having noticed the submissions advanced on behalf of the parties, it would be appropriate to decide the question of limitation first, and only thereafter, if need be, the merit of 13 the case would be gone into. Admittedly, the present civil revision application is barred by limitation and has been filed after expiry of period of limitation of about eight years three months. Though, a counter affidavit has been filed on behalf of opposite parties in main civil revision application challenging its maintainability on merit, but no counter affidavit has been filed on behalf of opposite parties in I.A. No. 919 of 2008. Therefore, facts stated in the aforesaid interlocutory application have to be accepted. Against the impugned order dated 10.8.1999, Civil Miscellaneous Appeal No. 12 of 1999 was filed on behalf of plaintiffs- petitioners within the statutory period of limitation. The appeal was admitted by learned District Judge concerned, though finally, after about five years, by an order dated 10.7.2004, it was ordered to have abated under section 4( c) of the Consolidation Act. Against the aforesaid order dated 10.7.2004, civil revision application No. 1374 of 2004 was filed before this Court within the statutory period of limitation. In the aforesaid civil revision application, notices were issued to the opposite parties, and finally by an order dated 15.1.2008 aforesaid civil revision was disposed of with certain observation. In the light of the aforesaid 14 observation, the present civil revision application has been filed without unnecessary delay within a period of one month from thereafter on 8.2.2008. Therefore, the petitioners have made out a strong case for exercise of powers under section 14 of the Limitation Act for exclusion of the period during which they were prosecuting the civil proceedings with due diligence before the courts, having no jurisdiction to entertain such proceeding. Scope of Section 5 of the Limitation Act is wider than section 14 of the Limitation Act. In the case of Consolidated Engineering Enterprises Vs. Principal Secretary, Irrigation Department (Supra), the Apex Court while considering the scheme and scope of section 5 and 14 of the Limitation Act, has laid down a law in paragraphs 21 and 28 of the said judgment, which will be relevant for the purposes of present case and relevant portions are reproduced herein below:
"21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bonafide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before section 14 can be pressed into service:
(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;
(2) The prior proceeding had been prosecuted 15 with due diligence and in good faith; (3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;
(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and ;
(5) Both the proceedings are in a court".
xxx xxx xxx "28 Further, there is fundamental distinction between the discretion to be exercised under Section 5 of the Limitation Act and exclusion of the time provided in Section 14 of the said Act.
The power to excuse delay and grant an extension of time under Section 5 is discretionary whereas under Section 14, exclusion of time is mandatory, if the requisite conditions are satisfied. Section 5 is broader in its sweep than Section 14 in the sense that a number of widely different reasons can be advanced and established to show that there was sufficient cause in not filing the appeal or the application within time. The ingredients in respect of Sections 5 and 14 are different. The effect of Section 14 is that in order to ascertain what is the date of expiration of the "prescribed period", the days excluded from operating by way of limitation, have to be added to what is primarily the period of limitation prescribed. ... ... ..."
12. It is true that condonation of delay is a matter of discretion of the court. Length of delay does not matter, but explanation furnished by the parties must be acceptable one. It is now well established that primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. Rules of limitation are not meant to destroy the rights of the parties, which prevent a party from 16 resorting to dilatory tactics. Rules of limitation have been framed to ensure that an aggrieved party seeks remedy before a court of law promptly. The Hon'ble Supreme Court has laid down the law in this regard in very categorical words in the case of N. Balakrishnan Vs. M. Krishnamurthy, reported in 1998 (7) SCC 123 . Paragraph 9, 11 and 13 of that judgment would be relevant and are reproduced herein below:
"9. It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Some times delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammelled by the conclusion of the lower court".
xxx xxx xxx 17 "11. Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time".
xxx xxx xxx "13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have 18 incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss."
13. In the back ground of the law, enunciated by the Apex Court, as referred to above, and in the factual back drop of the case, the petitioners have made out a very strong case for condonation of delay in filing the present civil revision application, after expiry of more than eight years. For the reasons recorded above, I.A. No. 919 of 2008 is hereby allowed. Limitation in filing the present civil revision application is condoned.
14. Now, coming to the merit of the case, I have noticed earlier that the merits of the claims of the parties have not been gone into by learned trial court. Only on the ground of order dated 25.5.1998 passed in Title suit No. 119 of 1993, the present suit instituted in the year 1969 has been held to be not maintainable. Learned counsel appearing on behalf of opposite parties, while supporting the impugned order, has opposed the present civil revision application primarily on the ground that it should be treated to be a decree, and if the petitioners were/are at all aggrieved, they should have challenged the same in an appeal. According to him, the 19 present civil revision application is not at all maintainable before this Court. However, learned counsel for the petitioners has submitted that impugned order cannot be termed to be a decree, under the meaning of C.P.C. and therefore, only remedy available to the petitioners was/is to file the present civil revision application and according to him, it is fit to be allowed.
15. In order to consider the aforesaid rival submissions, it would be apt to quote section 2 (2) of C.P.C., which defines decree. Section 2(2) of C.P.C. reads as follows:
"2. Definitions--- In this Act, unless there is anything repugnant in the subject or context-
xxx xx x xxx (2) "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within[***] section 144, but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal of default.
Explanation. ---- A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;"
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16. On plain perusal of definition of decree, it is apparent that there must be formal expression of an adjudication regarding a dispute between the parties. Further it must conclusively determine the rights of the parties with regard to all or any of the matter in controversy in the suit. A decree may be preliminary or final. Rejection of a plaint is also treated to be a decree. Apparently in the present case, none of the conditions have been fulfilled. Neither rights of parties have been determined nor there has been formal expression of an adjudication regarding a dispute between the parties. The suit of the plaintiff- petitioners, filed in the year 1969, has been held to be not maintainable, on the basis of an order dated 25.5.1998 passed in Title suit no. 119 of 1993, which seems to be completely misconceived.
17. Reliance placed by learned counsel appearing on behalf of opposite parties on the cases of Brahmdeo Prasad Vs Baldeo Prasad (Supra), Abhinandan Jha @ Abhed Jha V Anant Mishra (Supra) as also Sk. Junarbi v Sk. Mahmood (Supra) is of no help to him in the present case, since in all those cases the objections raised on behalf of the defendants regarding maintainability of the suit/proceedings 21 were taken up as preliminary issue and on the basis of such decision, suit was disposed of. Hence, it was held by this Court that such an order is a decree under the meaning of Section 2(2) of the C.P.C. In the present case, admittedly, the suit has not been decided on any preliminary issue, rather on the basis of palpably wrong interpretation of order dated 25.5.1998 (Annexure-4) passed in Title suit No. 119 of 1993, instant Title Suit No. 135 of 1969 has been held to be not maintainable. Therefore, the judgments referred to above, are not applicable in the present case.
18. A Division bench of this Court in the case of Rameshwar Thakur V. Neeraj Kumar Thakur (Supra) was considering the maintainability of civil revision application in a case where suit was held to be barred by the provisions of section 4(b) of the Consolidation Act and the plaint was rejected under Order 7 Rule 11 (a) C.P.C. In paragraph 16 of the aforesaid judgment, Division bench held that such an order is not a decree and revision application is maintainable. Paragraph 16 of the said judgment is quoted hereinbelow:
"16. In the instant case, the trial court had disposed of the suit on a preliminary point. It held that the suit was barred by the provisions of section 4(b) of the Consolidation Act and 22 accordingly rejected the plaint under order 7 Rule 11 (a) C.P.C. No doubt, rejection of plaint is also deemed to be decree but it does not determine the rights of the parties or the dispute as such. The case, therefore, falls in the second category, as mentioned above, and the revision application is, thus, maintainable."
19. Reliance placed by the learned counsel for the petitioners on the case of Sheodan Singh v Daryao Kunwar (Supra) also seems to be completely misconceived. In that case, issue before the Hon'ble Supreme Court was regarding applicability of the principles of res- judicata with respect to two different suits. Therefore, ratio laid down by the Supreme Court in the aforesaid case is not applicable in the case at hand.
20. However, the Apex Court in the case of Ratan Singh V Vijay Singh (Supra) in paragraph 11 has laid down a law and has decided as to what constitute a decree. Relevant portion of paragraph 11 of the said judgment is reproduced hereinbelow:
"11. In order that a decision of a court should become a decree there must be an adjudication in a suit and such adjudication must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for condonation of delay will not amount to a decree. Consequently, dismissal of an appeal as 23 time-barred is also not a decree. ..."
21. The Supreme Court recently in the case of S. Satnam Singh Vs Surender Kaur(Supra) has indicated the parameters and only on fulfillment of such parameters, an order passed by a Civil Court can be termed to be a decree. Law has been laid down explicitly by the Apex Court in paragraph 15 and 16 of that judgment. Paragraph 16 would be most appropriate for the purpose of the present case and is reproduced hereinbelow:
"16. For determining the question as to whether an order passed by a court is a decree or not, it must satisfy the following tests:
(i) There must be an adjudication;
(ii) Such an adjudication must have been given in a suit;
(iii) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit;
(iv) Such determination must be of a conclusive nature; and
(v) There must be a formal expression of such adjudication."
22. After having noticed the judicial pronouncements of our own High Court as also of the Apex Court, the impugned order dated 10.8.1999 passed by the learned Sub- Judge, by no stretch of imagination, can be termed as a decree. It does not satisfy the tests laid down by the Apex Court in the case of S. Satnam Singh Vs. Surender Kaur 24 (supra). Having held so, this Court has no option, but to hold that the present civil revision application is maintainable before this Court.
23. From the facts noted above, it is further apparent that though the title suit is pending since 1969 and it remained abated for quite a long time in terms of section 4( c ) of the Consolidation Act, and even after revival of the instant title suit by an order dated 1.9. 1997 (Annexure-3), the title suit could not be taken to its logical conclusion because of the impugned order dated 10.8.1999 on complete misinterpretation of an order dated 25.5.1998 (Annexure-4) passed in Title Suit No. 119 of 1993. Merits of the claim of the parties, regarding suit property, have not been gone into, though both sides are admittedly descendants of their common ancestor and are having share in the suit properties.
24. For the reasons recorded above, the impugned order dated 10.8.1999 passed in Title Suit No. 135 of 1969 by learned Sub-Judge-V, Sasaram is hereby set aside. The suit is directed to be restored to its original file, records of which, due to bifurcation of the district of Rohtas and creation of a new district Kaimur at Bhabhua, has been 25 transferred to the District of Kaimur at Bhabhua. Learned Trial Court , who would be in seisin of the instant title suit, is hereby directed to expedite the hearing of the suit and all endeavor should be made to conclude its hearing as early as possible preferably within a period of one year from the date of receipt/production of a copy of the present order.
25. In the result, the present civil revision application stands allowed with the observations and directions made above. In the facts and circumstances of the case, there shall be no order as to costs.
( Birendra Prasad Verma, J ) Patna High Court, Patna Dated the 28th day of April, 2011 M.Rahman/AFR