Disposed

Sunil Kumar Das and Anr. v. Md. Jawed Akhatar and Ors.

Patna HC12 May 2016CWJC/17484/2010

Case brief

AI extract

What is this about?

Single judge oral order observing that the writ petition concerning the validity of an additional written statement filed by substituted heirs proceedings during trial. Court disposed of petition directing lower court to consider legality of documents within framework of trial on priority basis.

What did the court decide?

Petition disposed; Lower court directed to examine validity of additional written statement during trial with priority.

Sunil Kumar Das and Anr. Vs Md. Jawed Akhatar… — Civil Procedure and Limitation | Patna HC (2016)

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Patna High Court CWJC No.17484 of 2010 (02) dt.12-05-2016

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IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.17484 of 2010

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SUNIL KUMAR DAS S/O KRISHNA CHANDRA DAS R/O MOH GHOSHI TOLA, P.O.MUNGER, P.S.KOTWALI, DISTT-MUNGER 2. MANISH CHANDRA DAS S/O KRISHNA CHANDRA DAS R/O MOH GHOSHI TOLA, P.O.MUNGER, P.S.KOTWALI, DISTT-MUNGER .... .... PETITIONER/S VERSUS 1. MD. JAWED AKHATAR S/O MD. JALIL AHMAD R/O MOH BADUDEOPUR, P.S. KOTWALI, PRESENTLY RESIDENT OF VILL&P.O.KHAJECHAK, P.S.KHARAGPUR, DISTT-MUNGER 2. MD. PARVEJ AKHATAR S/O MD. JALIL AHMAD R/O MOH BADUDEOPUR, P.S. KOTWALI, PRESENTLY RESIDENT OF VILL&P.O.KHAJECHAK, P.S.KHARAGPUR, DISTT-MUNGER 3. MD. SAHJAHAN S/O MD. JALIL AHMAD R/O MOH BADUDEOPUR, P.S. KOTWALI, PRESENTLY RESIDENT OF VILL&P.O.KHAJECHAK, P.S.KHARAGPUR, DISTT-MUNGER 4. GULISTAN PRAVEEN D/O MD. JALIL AHMAD R/O VILL & P.O.KHAJECHAK, P.S.KHARAKPUR, DISTT-MUNGER, PRESENTLY RESIDENT OF MOH-KHASH BAZAR KHARAGPUR, P.O.& P.S. KHARAKPUR, DISTT-MUNGER 5. DARKSHAN PRAVEEN D/O MD. JALIL AHMAD , W/O BULAND ANWAR R/O VILL CHHATRAPUR, RAMGARH, P.O. & P.S.RAMGARH, DISTTHAZARIBAGH(JHARKHAND) 6. KAHKASHA PRAVEEN D/O LATE MD.JALIL AHMAD , W/O SAHNEWAJ KHAN R/O P.O.&P.S.TOPCHACHI, DISTT-DHANBAD, (JHARKHAND) 7. MOSTT. NURUN NISHA W/O LATE MAZARUL HASAN R/O VILL & P.O.KHAZA CHAK, P.S. KHARAGPUR, DISTT-MUNGER 8. MD. MUSTAK S/O LATE MAZARUL HASAN R/O VILL & P.O.KHAZA CHAK, P.S. KHARAGPUR, DISTT-MUNGER 9. BIBI FARZANA KHATOON D/O MAZARUL HASAN R/O VILL & P.O.KHAZA CHAK, P.S. KHARAGPUR, DISTT-MUNGER 10. MD. HASIM, S/O LATE MAKBUL HASAN 11. MD. NAYEEM, S/O MD. KALEEM, R/O MOH P.O.BASUDEOPUR, P.S.KOTWALI, DISTT-MUNGER, AT PRESENT RESIDENT OF VILLP.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER 12. MOSTT. ROSAN BEGUM W/O LATE MD. HASNAIN 13. MD. SAHIN MINOR SON LATE MD. HASNAIN, MINOR SON AND DAUGHER OPPOSITE PARTY UNDER THE GUARDAUNSHIP OF THEIR MOTHER AND NATURAL GUARDIAN MOSTT. ROSAN BEGUM R/O VILL & P.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER 14. MD. NAVID MINOR, SON OF LATE MD. HASNAIN, MINOR SON AND DAUGHER OPPOSITE PARTY UNDER THE GUARDAUNSHIP OF THEIR MOTHER AND NATURAL GUARDIAN MOSTT. ROSAN BEGUM R/O VILL & P.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER 15. RESAMA MINOR DAUGHER OF LATE MD. HASNAIN , MINOR SON AND DAUGHER OPPOSITE PARTY UNDER THE GUARDAUNSHIP OF THEIR MOTHER AND NATURAL GUARDIAN MOSTT. ROSAN BEGUM R/O VILL & P.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER 16. SAGUFI MINOR DAUGHER OF LATE MD. HASNAIN , MINOR SON AND DAUGHER OPPOSITE PARTY UNDER THE GUARDAUNSHIP OF THEIR MOTHER AND NATURAL GUARDIAN MOSTT. ROSAN BEGUM R/O VILL & P.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER 17. BEAUTY MINOR DAUGHER OF LATE MD. HASNAIN , MINOR SON AND DAUGHER OPPOSITE PARTY UNDER THE GUARDAUNSHIP OF THEIR MOTHER AND NATURAL GUARDIAN MOSTT. ROSAN BEGUM R/O VILL & P.O.KHAZACHAK, P.S.KHARAGPUR, DISTT-MUNGER

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.... .... RESPONDENT/S

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Patna High Court CWJC No.17484 of 2010 (02) dt.12-05-2016

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Appearance : For the Petitioner/s : Mr. Shailendra Kr.Dwivedi--Advocate For the Respondent/s : Mr. Khatim Raza--Advocate

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====================================================== CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI ORAL ORDER

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16 12-05-2016

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Heard learned counsel for the petitioners as well as learned counsel for the respondents.

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Instant petition is nothing, but is shrouded under jugglery of procedural events. To appreciate the controversy, it is evident that defendant no.1 had appeared, filed his written statement. Subsequently thereof, on account of his death, his legal heirs were substituted and who, accordingly, filed additional written statement. The aforesaid additional written statement remains pending on the record and till today, no order has been passed at the end of the learned lower Court on the score of its validity. Though, there happens to be an averment in the additional written statement that no written statement was filed on behalf of defendant no.1, however, the substituted heirs right from 1994, till today, have not prayed before the learned lower Court to have authenticity of signature of defendant no.1 over vakalatnama as well as written statement duly examined by the handwriting expert to expose forgery, if any, having been committed.

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At the other end, after expiry of so many years, on 09.08.2004, a prayer was made on behalf of petitioners, who

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Patna High Court CWJC No.17484 of 2010 (02) dt.12-05-2016

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happen to be intervenors/ defendants that additional written statement filed on behalf of substituted heirs of defendant no.1 should be rejected. As the aforesaid petition was not pressed, the same was rejected as dismissed in default vide order dated 28.04.2005. Subsequently thereof, same kind of prayer has been re-agitated at the end of the petitioners/ intervenors/ defendants on 30.05.2005 which sailed up-till-now and during midst thereof, the parties have adduced their evidence and further, concluded their argument. On account of insistence of the petitioners/ intervenors/ defendants by the order impugned dated 04.05.2006, the Subordinate Judge-1^st , Munger, rejected the petition dated 30.05.2005 whereby prayer has been made on behalf of petitioners to decide the issue as preliminary issue.

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Certainly, the aforesaid issue is not the issue in lis nor has got an impact over maintainability of the suit and on account thereof, the learned lower Court had rightly rejected the prayer of the petitioners to decide the issue as preliminary issue. However, it will be within the wisdom of the learned lower Court while adjudicating upon the matter to see the proprietary, legality of the written statement having filed on behalf of defendant no.1 as well as additional written statement having filed by substituted heirs of defendant no.1 in light of provisions so enumerated under

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Patna High Court CWJC No.17484 of 2010 (02) dt.12-05-2016

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the statute.

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With the aforesaid observation, instant petition is

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disposed of.

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Office is directed to transmit the L.C. Record immediately. Because of the fact that the case is old one, therefore, the learned lower Court will proceed with the trial on priority basis.

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(Aditya Kumar Trivedi, J)

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Vikash/-

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Sunil Kumar Das and Anr. v. Md. Jawed Akhatar and Ors.

Case brief

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Sunil Kumar Das and Anr. v. Md. Jawed Akhatar and Ors.

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