Patna High Court - Orders
Md. Hazi Nazir Ahamad vs Smt. Usha & Ors. on 4 July, 2018
Author: Prabhat Kumar Jha
Bench: Prabhat Kumar Jha
Patna High Court C.R. No.125 o f 2013 (11) dt.04-07-2018
1
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Revision No.125 of 2013
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1. Md. Hazi Nazir Ahamd S/O Late Basiruddin R/O Village- Brahmpura,
P.O. M.I.T. P.S- Brahmpur, District- Muzaffarpur.
.... .... Petitioner/s
Versus
1. Smt. Usha Jha W/O Bhushan Kumar R/O Mohalla- Brahmpura, P.O-
M.I.T. P.S- Brahmpur, District- Muzaffarpur.
2. Mahtab Alam S/O Md. Kalimullah
3. Md. Attiullah S/O Md. Basiruddin R/O Mohalla Brahmpura, P.O- M.I.T.
P.S- Brahmpur, District- Muzaffarpur.
4. Amane Khatoon W/O Md. Mokin Ansari S/O Basiruddin R/O Village-
Maharthe, P.S- Kanti, R/O At Mohalla- Brahmpura, P.O- M.I.T., P.S-
Brahmpur, District- Muzaffarpur.
5. Sri Bhushan Kumar S/O Sri Ram Narain Jha R/O Mohalla- Brahmpura,
P.O- M.I.T. P.S- Brahmpura, District- Muzaffarpur.
.... .... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Shiva Shankar Sharma
For the Respondent/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR
JHA
ORAL ORDER
11 04-07-2018Heard Mr. Shiv Shankar Sharma, learned counsel appearing on behalf of the petitioner. Nobody appears on behalf of opposite parties, although, the names of the learned counsel for the opposite parties is appearing in the daily cause list.
The petitioner has filed this Civil Revision petition against the order dated 18.05.2013 passed in Misc. Case no.1 of 2012 by Sub Judge 7th, Muzaffarpur by which the petition of the petitioner filed under Section 151 C.P.C. has been dismissed on the ground that the same petition is filed at a belated stage and Patna High Court C.R. No.125 o f 2013 (11) dt.04-07-2018 2 instead of filing petition under Section 151 C.P.C. petition under Order IX Rule 4 should have been filed.
Mr. Shiv Shankar Sharma, learned counsel for the petitioner submits that the petitioner could not appear in the suit from the month of November, 2010 to 18.12.2011 on account of different ailments. When the petitioner came to enquire about the suit in the month of January, 2012, the Advocate Clerk informed that the suit was dismissed. The petitioner inspected the records and found that the suit was pending for hearing on the petition of the defendant but the petition of the defendant as well as the suit was also dismissed. It is submitted that when the suit was posted for hearing on the petition of the defendant in the absence of the plaintiff, the suit should not have been dismissed and that is why the petitioner filed petition under Section 151 C.P.C. for setting aside the dismissal of the suit instead of filing petition under Order IX Rule 4 C.P.C.
Perused the ordersheet. It is admitted fact that suit was posted for hearing on the petition of the defendant. The defendant was not present on 29.03.2011. Even the plaintiff was not present on that day. The Court should have firstly dismissed the petition of the defendant instead of dismissing the suit also. Mere mentioning of wrong Section should not come in way as impediment in imparting Patna High Court C.R. No.125 o f 2013 (11) dt.04-07-2018 3 justice.
Therefore, I find that the order dated 18.05.2013 passed in Misc. Case no.1 of 2012 is erroneous and the learned Sub Judge has committed jurisdictional error. Accordingly, this Civil Revision petition is allowed. The order dated 18.05.2013 is set aside. Title Suit No.2 of 2009 is restored to its original file.
(Prabhat Kumar Jha, J) Saurabh/-
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