Patna High Court - Orders
Raghuni Rai & Ors vs Rambilas Rai & Ors on 9 July, 2012
Author: Samarendra Pratap Singh
Bench: Samarendra Pratap Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.5972 of 2010
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1. Raghuni Rai S/O Late Bhagelu Rai
2. Mathura Rai S/O Late Ghinawan Rai
3. Govind Rai S/O Late Ghinawan Rai
4. Tapeshwar Rai S/O Late Ghinawan Rai
5. Bipin Rai S/O Late Ghinwan Rai
6. Narayan S/O Late Ghiawan Rai,r/o Vill Pachkhanda, PO/Police Station
Mashrakh, Distt-Saran .... .... Petitioners
Versus
1. Rambilas Rai S/O Late Chintaman Rai
2. Mahanth Rai S/O Late Chintaman Rai
3. Shri Rai S/O Chintaman Rai
4. Santlal Rai S/O Late Chintaman Rai
5. Ram Nath Rai S/O Lat Chintaman Rai
6. Kailash Rai S/O Late Babu Ram Rai
7. Maduri Rai @ Madur Davi W/O Late Thakur Rai
8. Shatrughan Rai S/O Late Thakur Rai,r/o Pachkhanda, P.O. & P.S.Mashrakh,Saran
9. Shailesh Rai Minor S/O Late Thakur Rai,
10. Santosh Rai Minor S/O Late Thakur Rai,
11. Arun Rai Minor S/O Late Thakur Rai,
12. Sunil Rai Minor S/O Late Thakur Rai, all (respondents 8 to 12) are Minor
Under The Gurardianship Of Their Mother Maduri Rai @ Madur Davi
Defendant/Respondent No.7 R/O Vill Pachkhanda, P.O. & P.S.Mashrakh,
Distt-Saran
13. The State Of Bihar , Through Collector Saran, Chapra ... .... Respondents
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Appearance :
For the Petitioner/s : Mr. Rakesh Kumar Srivastava
Mr. Dineshwar Prasad Singh
For the Respondent/s : Mr. (GA4)
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CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP
SINGH
ORAL ORDER
9 09-07-2012The petitioners have challenged order dated 9.2.2010, passed by Addl. District Judge, Saran at Chapra in Misc. appeal no.10 of 2009, whereby the Appellate court has set aside order dated 17.12.2008 passed by the Sub-judge V, Saran in Partition suit no. 484 of 2003 under Order 47 Rule 1 CPC allowing the endorsement of document under Order 13 Rule 2 CPC.
The plaintiff -respondent no.1 filed Partition suit no. 484 2 Patna High Court CWJC No.5972 of 2010 (9) dt.09-07-2012 2/5 of 2003 for partition of land. The defendant petitioner filed written statement. On 8.3.2007 issues were settled. On 12.11.2007 plaintiffs' evidence closed. Thereafter defendant 2nd set and 3rd set adduced their evidence. The evidence on behalf of defendants 1st set was in progress. At this juncture, defendant no. 6 filed a petition under Order 13 Rule 2 of the CPC for admitting three documents, namely, (1) original mortgage deed dated 17.6.1921 executed by Babu Ram Raut s/o Gopal Raut, who was grand father of plaintiff and defendants 1st set (2) photo copy of the certified copy of the deed of gift dated 24.7.1947 executed by Perdesi, a joint Khatedar in the Khatian prepared in the name of Gopal Raut to Bhagelu, the father of writ petitioner no.1 and also the member of the branch of Gopal and (3) photo copy of the certified copy of the deed of gift executed by Bhagelu to his son Raghuni Rai, deed dated 21.3.1983 executed by one Bhejera.
The trial court initially rejected the petition of defendant no.6 (Raghuni Rai) but subsequently upon consideration of review petition filed under Order 47 Rule 1 C.P.C. allowed the same vide order dated 17.12.2008. The plaintiff- respondent no.1 being aggrieved by the said order filed an appeal no. 10/2009 which was allowed vide order dated 9.2.2010, passed by 3 Patna High Court CWJC No.5972 of 2010 (9) dt.09-07-2012 3/5 Addl. District Judge III, Chapra in Misc.appeal no. 10 of 2009 and Order of the trial court passed under Order 41 Rule 1 dated 17.12.2008 was set aside.
The petitioners have limited their prayer to the rejection of marking of the original of mortgage deed dated 17.6.1921 as exhibit by the appellate court. The petitioners did not press their claim for marking the other two documents as exhibits which were too disallowed by appellate court. Learned counsel submits that the document in question was necessary for deciding the suit, as the same was executed by grand father of the plaintiffs in favour of ancestors of the defendants. Learned counsel submits that the order can be reviewed u/o 41 Rule 1 CPC by the same court if there is sufficient reason for it. Thus the trial court was not in error in reviewing its earlier order as there was sufficient reason for it. He submits that the appellate court failed to notice that the mortgage deed which was sought to be endorsed was original copy and not certified copy or the photo stat copy of the original. In support of his submissions, learned counsel for the petitioners has relied upon the decision reported in case of Rajender Singh Vs Lt. Governor, Andaman & Nicobar, AIR 2006 SC 75; Board of Control for Cricket in India and another Vs. Netaji Cricket Club and others, (2005)4 SCC 4 Patna High Court CWJC No.5972 of 2010 (9) dt.09-07-2012 4/5 741 as well as a decision reported in case of Durga Missir Vs. Baijnath Saran and others, AIR 1929 Patna 325.
Learned counsel for plaintiff-respondent no.1 submits that the trial court erred in reviewing its earlier order and as such the appellate court rightly interfered. Learned counsel submits that order can be reviewed if there is an error apparent on the face of the record or there is discovery of new facts and documents which could not be brought earlier, despite due diligence. According to the plaintiffs-respondents, none of the conditions for reviewing of order was available in the instant case.
I have heard the parties.
The trial court has prima facie found in its order passed under Order 47 Rule 1 Code of Civil Procedure that the document sought to be marked was said to be executed by the grand father of the plaintiff in favour of ancestors of the defendants and as such there was sufficient cause for reviewing the order. Furthermore, the defendants-petitioners stated in their petition under Order 47 Rule 1 C.P.C. that only of late the document was found after hectic search. It would appear from para 6 of the Appellate order that it committed an error of record in observing that all the documents were photocopies and not original. So far as mortgage deed of 1921 is concerned, 5 Patna High Court CWJC No.5972 of 2010 (9) dt.09-07-2012 5/5 it is not the photo copy of certified copy as indicated by the appellate court in the order, but the original as asserted by petitioners/defendants. I find that the trial court has given cogent reason for allowing the petition filed under Order 47 Rule 1 C.P.C. I do not find as to how the plaintiffs/respondents would be prejudiced if he is given an opportunity to rebut the evidence produced by the defendants-petitioners.
In the back drop of aforesaid findings, the appellate court order dated 9.2.2010, passed by Addl District Judge 3, Saran at Chapra is set aside so far it relates to not admitting the mortgage deed as exhibit, but on payment of cost of Rs.1500/- to the plaintiff/respondent, which must be paid within a month of receipt of this order. The trial court would give sufficient opportunity to the plaintiffs-respondents to produce their evidence to rebut mortgage deed so produced by defendant- petitioners, if so advised.
With the aforesaid liberty to the plaintiffs-respondents this writ petition is allowed.
Shashi. (Samarendra Pratap Singh, J)