Allowed

Md. Shakir and Ors. v. Basudeo and Ors.

Patna HC12 Jul 2013MA/648/2010

Case brief

AI extract

What is this about?

Appeal against rejection of an application challenging service of notice in an ex parte eviction proceeding under the Bihar Hindu Religious Trust Act. The Court set aside the order rejecting the application and remitted the matter to the Tribunal for disposal after hearing. The appeal was allowed.

What did the court decide?

The impugned order rejecting the application was set aside and the matter remitted to the Tribunal for consideration after hearing the contesting parties.

Md. Shakir and Ors. Vs Basudeo and Ors. — Civil Procedure and Limitation | Patna HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT PATNA

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Miscellaneous Appeal No.648 of 2010

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====================================================== 1. Md. Shakir son of late Md. Kasul resident of village-Bakarpur P.O. Daryapur, P.S. Mufassil, District Munger

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Kharagdhari Pal son of Late Ganpat Pal resident of village Gulalpur, P.O Bank, P.S. Muffasil, District Munger

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Jogendra Yadav @ Jago Yadav @ Jogi Yadav son of late Ram Swaroop Yadav, resident of village and P.o. Bank P.S. Muffasil, District Munger .... .... Appellant/s

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Versus

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Basudeo Sah son of Late Ramdas Sah, resident of village Shuturkhana, P.o. Bank, P.S. Muffasil, District Munger

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Dasrath Yadav son of Late Tarni Yadav 3. Abhi Manyu Yadav, son of late Jaldhar Yadav, No.2 and 3 resident of village and P.O. Bank P.S. Muffasil, District Munger

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Jittan Yadav

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Mittan Yadav 6. Sri Yadav all sons of late Nagina Yadav, all resident of Kanchangarh, P.O. Bank District Munger

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SK.Ghafoor son of Late Kalo @ SK.Majeed, resident of village Bankarpur, P.O. Daryapur, P.S. Muffassil, District Munger .... .... Respondent/s

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====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER

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8 12-07-2013 Heard Mr. Abdul Mannan Khan, learned counsel appearing on behalf of the appellants.

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This appeal is directed against the order dated 06.05.2010 passed in Misc. Case No. 2 of 2010 arising from Case No. 2 of 2009, whereby the Bihar Hindu Religious Trust, Patna has rejected the application filed by the appellants under Order 9 Rule 13 of the Code of Civil Procedure (hereinafter referred to as the ‘Code’).

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It is the case of the appellants that Case No. 2 of 2009 had been filed by the respondent no. 1 alleging encroachment. It is stated that although no notice was served upon the appellants but the

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Patna High Court MA No.648 of 2010 (9) dt.12-07-2013

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Tribunal taking note of the fact that the registered notice had been issued and that substituted service by way of paper publication had taken place, proceeded with the matter ex parte and upholding the charge of encroachment, the opposite parties were directed to remove the same. It is stated that the notice was never served upon the appellants and it is in this background that the application under Order 9 Rule 13 of the Code, was filed and which has since been rejected by the order impugned in view of the provisions of Section 43A(4) of the Bihar Hindu Religious Trust Act, 1950 providing for an appeal against an order passed by the Tribunal. It is stated that the reliance of the Tribunal upon the provisions of Section 43A(4) is thoroughly misconceived inasmuch as the forum of appeal would only be available against a final order passed on contest and not against an ex parte order or in cases where a party has questioned the order under Order 9 Rule 13 of the Code.

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Though the applicant-respondent No.1 has appeared through counsel but there is no representation on his behalf today.

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I have heard Mr. Abdul Mannan Khan, learned counsel for the appellants and I have perused the order impugned.

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It is more than manifest that the Tribunal has simply relied upon the provisions of Section 43A(4) of the Act to abdicate his responsibility of disposal of the application filed by the petitioner under Order 9 Rule 13 of the Code. Section 43(4) is self-eloquent

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Patna High Court MA No.648 of 2010 (9) dt.12-07-2013

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and vests the Tribunal with all powers vested in the Civil Court under the provisions of the Code, which also would include the powers of Order 9 Rule 13 of the Code. The moment the petitioner has filed an application under the provisions of Order 9 Rule 13 of the Code, the Tribunal was bound to consider the application in the light of the said provisions and to adjudicate whether or not the notice issued to the petitioner was duly served upon him in terms of the provisions of Order 5 of the Code. Simply resorting to the provisions of Order 43A(4) to reject such application on grounds of availability of appellate forum is an abdication of jurisdiction by the Tribunal.

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For the reasons aforesaid the order impugned cannot be sustained and is accordingly set aside.

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The matter is remitted back to the Tribunal for consideration of the application filed by the appellants under Order 9 Rule 13 of the Code in terms of the provisions enshrined thereunder and its disposal in accordance with law and after hearing the contesting parties.

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This appeal is allowed.

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Bibhash/-

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(Jyoti Saran, J)

Md. Shakir and Ors. v. Basudeo and Ors.

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Md. Shakir and Ors. v. Basudeo and Ors.

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