Jharkhand High Court
Indrajit Mandal & Ors vs Balram Mandal & Anr on 30 September, 2016
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No. 1725 of 2009
1. Indrajit Mandal, son of late Bechan Mandal
2. Meghia Mandal, daughter of late Bechan Mandal, and wife of Late
Chandra Mandal
3. Kamla Mandal, daughter of late Bechan Mandal and wife of
Kailash Mandal
4. Jogendra Mandal, son of late Prabha Mandal
5. Mahendra Mandal, son of late Prabha Mandal
6. Sudhir Mandal, son of late Bechan Mandal
7(a) Chinoo Nadeb, S/o Late Muddi Sk.
7(b) Minu Khatoon
7(c) Beli Bibi
Both D/o Late Muddi Sk.
Nos. 1 and 2 residents of Kamlainbagicha
No. 3 resident of village: Ghatselampur
Nos. 4 and 5 residents of village : Tekbathan
No. 6 resident of village Munnapatal and
No. 7 resident of Mahajantoli, PO and PS Rajmahal, Dist.
Sahebganj ... Petitioners
Versus
1. Balram Mandal
2. Subol Mandal
Both sons of late Kashi Nath Mandal,
Both residents of village : Kaswa Gidarmani, PO and PS
Rajmahal, Dist. Sahebganj ... Respondents
CORAM : HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
For the Petitioners : Mr. Sandeep Verma, Advocate
For the Respondents : Mr. Rajeeva Sharma, Sr. Advocate
Mr. Aditya Raman, Advocate
11/30.09.2016When the application filed in F.D. Case No. 24 of 1967 was dismissed in default, the petitioners filed an application for recall of the said order dated 08.01.2004 which was registered as Misc. Case No. 05 of 2006. This is the case which has been dismissed by the trial court vide order dated 10.02.2009, which gave a cause of action to the petitioners to approach this Court for filing the instant writ petition.
2. Before adverting to the contentions raised on behalf of the parties, it would be appropriate to record few facts of the case. Title Partition Suit No. 24 of 1967 was instituted by one 2 Most. Nitto claiming 1/3rd share in the suit property, which was decreed on 11.07.1969. Against the preliminary decree, Title Appeal No. 64/1969/4/1974 was preferred by the defendant Balram Mandal and others. The said appeal was dismissed on 18.03.1974, against which S.A. No. 201 of 1976 was preferred, however, the Second Appeal also stood dismissed in terms of judgment and order dated 31.08.1979. It appears that an application was filed by the petitioners herein on 17.05.1990 in Title Partition Suit No. 24 of 1967 for their impleadment in place of some of the deceased defendants, however, the said application remained pending for more than 15 years and finally it was dismissed on 08.01.2004 for non prosecution. Seeking restoration of the application and recall of order dated 08.01.2004, an application was filed on 27.09.2006 which, as noticed above, was registered as Misc. Case No. 05 of 2006.
3. Mr. Sandeep Verma, the learned counsel for the petitioners submits that in the accompanied application under Section 5 of the Limitation Act the petitioners disclosed sufficient cause for delay in filing the restoration application, however, the trial court without adverting to the same and instead, adjudicating the merits of the claim of the petitioners, dismissed Misc. Case No. 05 of 2006 vide impugned order dated 10.02.2009, which cannot be permitted in law.
4. Per contra, Mr. Rajeeva Sharma, the learned Senior counsel appearing for the respondents submits that the petitioners who claimed themselves legal heirs and successors of the defendant no. 1 namely, Parsu Ram Mandal have raised a dispute in respect of their entitlement to the share of the defendant no.1, which, at this stage, cannot be adjudicated in the final decree proceeding by the trial court. Since the petitioners did not take steps in the matter, it is contended that the application seeking their impleadment has rightly been dismissed by the trial court.
5. A perusal of the impugned order dated 10.02.2009 at the first glance gives an impression that the trial court has entered into 3 the merits of the claim of the petitioners in their application seeking recall of order dated 08.01.2014, however, on a closer scrutiny I find that some discussion on the merits was, infact, necessary for the reason that while deciding an application under Section 5 of the Limitation Act the parameters which the Courts keep in mind are, the stake of the parties, probable loss to the parties and whether there is a primafacie case in favour of the applicant(s) or not. Viewed thus, the discussion in order dated 10.02.2009 does not appear to be unwarranted, however, the discussion made therein shall not prejudice the petitioners in any other proceeding taken by them, in accordance with law.
6. I find that in the application for restoration vide Misc. Case No. 05 of 2009 neither the date of death of Parsu Ram Mandal nor the date of death of his legal heirs and successors have been disclosed. One of the petitioners has claimed purchase from the original plaintiff who is dead now and thus, the factum of execution of saledeed by her needs to be established. For the aforesaid reasons the petitioners had no case for substitution in the Final Decree proceeding and, infact, the application under Order IX Rule 4 C.P.C. was not maintainable.
7. Considering the aforesaid facts, I find no infirmity in the impugned order dated 10.02.2009. The instant writ petition, devoid of merits, is dismissed.
(Shree Chandrashekhar, J.) Amit/