Patna High Court - Orders
Sita Ram Sao vs Smt. Shanti Devi on 27 September, 2011
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Review No.263 of 2011
In
(CIVIL WRIT JURISDICTION CASE 10652/2011)
Sita Ram Sao
Versus
Smt. Shanti Devi
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ORDER
03. 27.09.2011. I have heard the learned senior counsel, Mr. Kamal Nayan Chaubey on behalf of the petitioner.
(2) This review application has been filed by the petitioner for review of the order dated 08.07.2011 passed by me in C.W.J.C. No.10652 of 2011 whereby the writ application was dismissed. It appears that the present petitioner filed application under Section 10 of the Code of Civil Procedure for stay of eviction suit No.15 of 2008 on the ground that probate case No.18 of 2010 is pending before the Addl. District Judge, Gaya. The learned trial Court by terms of order dated 06.05.2011 rejected the said application on the ground that the stage of eviction suit is that the same has been fixed for final argument and the petitioner has partially argued the case and thereafter this petitioner has filed with a view to delay the disposal of the eviction suit which requires speedy trial. As stated above, the writ application was dismissed by me on 08.07.2011.
(3) The learned counsel for the petitioner submitted that while rejecting the writ application, various Judgments, i.e., 1997 (2) P.L.J.R. 649, 1994 (2) -2- P.L.J.R. 750 and 1987 P.L.J.R. 53 Supreme Court have not been considered and therefore, the order may be reviewed.
(4) The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneous trying to parallel suits in respect of the same matter in issue. The provision is merely a rule of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant rather for a Court to decide what will be the best course to be adopted for expeditious disposal of the case. Admittedly, in the probate case, the only question that may be decided is as to whether the Will in question is genuine or not. In the said probate case, the plaintiff is not a party. Unless probate is granted, the petitioner is precluded from claiming title. So far eviction suits is concerned, the issue to be decided is whether there is relationship of landlord and tenant and whether any grounds for eviction as enumerated under Section 11 of the B.B.C. Act arises or not. Therefore, the scope of both the suits and courts are entirely different. It is also well settled that in the probate proceeding the validity of the execution of Will in respect of properties mentioned is decided but it does not declare or decide upon the validity, legality of disposition contained therein. In a case of disputes as regard disposition made therein, the parties can institute proceedings in Civil Courts without impugning the execution of the Will which has already -3- been decided in the probate proceedings.
(5) So far review is concerned, the provision relating to exercise of power of review construed an exception to the general rule that when once a Judgment / Order is signed and pronounced, it cannot afterwards be altered, added to and hence a right of review is exercisable only where the circumstances are covered by the statutory exceptions. The provisions as contained in Order 47 Rule 1 C.P.C. is in itself definitive of the limits within which a review is permitted by the code of Civil Procedure. Here, as has been stated above, the submission of the learned counsel is that some of the decisions have not been considered. It is not the case that those decisions were cited but it was not considered. Therefore, the submission is that earlier the counsel who was appearing could not properly explain the legal position. In my opinion, the learned counsel for the petitioner could not properly explain the legal position or cited decisions which he wants to cite in review is not a ground for review.
(6) It may be reiterated here that this Court was exercising supervisory jurisdiction under Article 227 of the Constitution of India. As has been stated above object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying to parallel suits in respect of same matter in issue which is a rule of procedure and decree passed in contravention thereof is not a nullity. -4-
The petitioner has no vested right to compel the Court to stay the eviction suit on the ground of pendency of probate case. Likewise the supervisory jurisdiction under Article 227 of the Constitution of India is discretionary jurisdiction and a person cannot claim it as a matter of right vide the decision of the Apex Court reported in Shalini Shyam Shetty Vs. Rajendra Shankar Patil 2010 (8) Supreme Court cases 329.
(7) In view of the above facts and circumstances of the case, I do not find any merit in this review application and the order passed in C.W.J.C. No.10652 of 2011 cannot be altered or modified in exercise of review jurisdiction. Therefore, this review application is dismissed.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 27thday of September, 2011 Sanjeev/A.F.R.