Allowed

Urmila Devi v. Rupkali Devi and Ors.

Patna HC24 Nov 2017C.Misc./581/2016

Case brief

AI extract

What is this about?

This order set aside a Sub Judge's order rejecting a petition to recall an order dismissing a petition to accept a written statement. The High Court found the lower court committed a jurisdictional error by rejecting the recall petition on the ground of non-prosecution despite the written statement being on record.

What did the court decide?

Order dated 16.04.2016 is set aside and the civil miscellaneous application is allowed.

Urmila Devi Vs Rupkali Devi and Ors. — Partition | Patna HC (2017)

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Patna High Court C.Misc. No.581 of 2016 (9) dt.24-11-2017 1

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IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL MISCELLANEOUS JURISDICTION No.581 of 2016

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======================================================

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Urmila Devi Wife of Sadhulal Rai D/o Jagdish Rai Resident of villageBindawan Tola, Shiswa Basant, P.O. - Sheetalpur, P.S.-Pipra, District- East Champaran

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.... .... Defendant No.10-Petitioner Versus

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Rupkali Devi W/o Pashpat Rai D/o Harihar Rai Resident of villageMaharam, P.S. - Mohammadpur District- Gopalganj

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Mahadevi Devi wife of Ram Narayan Yadav, D/o Harihar Rai Resident of village- Radho Rai P.S.- Chirayia, District- East Champaran

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Sharup Rai son of Late Harihar Rai

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Shivdhari Rai son of Late Harihar Rai

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Bhudan Rai son of Late Harihar Rai

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Gandhi Rai S/o Late Harihar Rai All are resident of village- Hussani Tola Manglapur, P.O. Hussaini, P.S. - Rampur, Khajuria, District- East Champaran

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Ganesh Rai

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Jyotik Rai Both are sons of Suraj Rai and both are Resident of Devpur, Parsa, P.S. - Kalyanpur,P.O. - Parsouna, District- East Champaran

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…….Plaintiff 2^nd Set/O.P.

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Shail Devi D/o Jagdish Rai Resident of Village- Haraj, P.S.- Motihari Muffasil, District- East Champaran

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Banaras Rai S/o Rupchan Rai

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Chandradeo Rai Son of Rupchan Rai

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Sugiya Kuwar Wife of Suddhu Rai

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Sumitra Kumari D/o Suddhu Rai

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Kunti Devi Wife of Rameshwar Rai Resident of village- Siswabasant, P.O. Sheetalpur, P.S. Kalyanpur, District-East Champaran

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……Defendant 1^st /O.P.

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Madan Rai S/o Banaras Rai

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Vidyajan Rai S/o Madan Rai

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Achay Lal Rai S/o Banaras Rai

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Haridanan Rai S/o Achay Lal Rai

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Badami Devi W/o Jogendra Rai D/o Jagdish Rai

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……Defendant 2^nd set

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Shivchandra Rai S/o Rajbal Rai

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Ramakant Rai S/o Shivchandra Rai All are resident of Brindawan Tola, Siswabasant, P.O. Sheetalpur, District- East Champaran

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.... ……Defendant 3^rd set

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====================================================== Appearance : For the Appellant/s : Mr. Dilip Kumar Tondon For the Respondent/s : Mr.

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====================================================== CORAM: HONOURABLE MR. JUSTICE PRABHAT KUMAR JHA ORAL ORDER

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Patna High Court C.Misc. No.581 of 2016 (9) dt.24-11-2017 2

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9 24-11-2017 Heard both sides.

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The petitioner has filed this civil miscellaneous application against the order dated 16.04.2016 passed by Sub Judge VIII, Motihari in Partition Suit No.189 of 1994 by which the petition of the petitioner-defendant No.10 for recalling the order on 01.11.2007 was rejected for accepting the written statement of the defendant No.10.

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The learned counsel for the petitioner submits that the petitioner-defendant No.10 filed written statement on 06.06.2007 itself and also filed a petition for accepting his written statement but since the petitioner did not notice, her written statement was rejected on the ground of non-prosecution. The petitioner came to know about the order at the time of hearing of the suit under Order VIII Rule 10 and filed the petition for recalling that order but the learned Sub Judge erroneously rejected the petition of the petitioner-defendant No.10.

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On the other hand, Mr. Arbind Kumar Sharma, learned counsel for the respondent Nos.1 and 2 submitted that there is no jurisdictional error or illegality in the order.

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It appears that petitioner was defendant No.10 and he had already filed the written statement within time. The same was on record with the petition to accept the written statement.There is

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Patna High Court C.Misc. No.581 of 2016 (9) dt.24-11-2017 3

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no provision in Order VIII to accept the written statement on being moved. Te learned Sub Judge erroneously rejected the written statement on 01.11.2007 on the ground that the petition was not moved. When the defendant No.10-petitioner came to know this fact, she filed petition for recalling the aforesaid order but the learned Sub Judge rejected the same also.

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I find that the learned Sub Judge has committed jurisdictional error in rejecting the petition of the petitioner for recalling the order only on the ground of non-prosecution.

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Accordingly, the order dated 16.04.2016 is set aside and the civil miscellaneous application is allowed.

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(Prabhat Kumar Jha, J)

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Saurabh/-

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U T

Urmila Devi v. Rupkali Devi and Ors.

Case brief

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Urmila Devi v. Rupkali Devi and Ors.

Case brief

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