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Bishwanath Sah v/s Shyam Bharti

    Civil Revision 1678 Of 2004

    Decided On, 18 August 2005

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE S.N.HUSAIN

    For the Appearing Parties: Ganpat Trivedi, Umesh Kumar Mishra, Anjan Chakraborty, Rajesh Kumar, Advocates.



Judgment Text

S.N.HUSSAIN, J.

(1.) Heard learned counsel for the parties,

(2.) Petitioners are plaintiffs of Title Suit No. 176 of 1995 which was d

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ecreed on 28.2.2003 under the provision of Order VIII Rule 10, CPC. Thereafter, the defendants-opposite parties filed Miscellaneous Case No. 21 of 2003 under Order IX Rule 13, CPC which was allowed by the impugned order dated 21.8.2004 passed by the learned Second Munsif, Siwan.

(3.) It is not in dispute that the plaintiffs had filed their rejoinder in the Miscellaneous Case on 26.9.2003 raising the question of maintainability of the case on the ground that when the suit is decreed under Order VIII Rule 10, CPC the provision of Order IX Rule 13, CPC can not be made applicable and hence, the Miscellaneous Case was not maintainable at all.

(4.) After going through the impugned order of the learned Court below, it is quite apparent that he has not at/all considered the question of maintainability which was the first point to be decided in such matter. Hence, without going into the merits of the case and the argument made by the learned counsel for the parties, I am setting aside the impugned order and remitting the matter to the learned Court below for deciding the question of maintainability of the Miscellaneous case on the basis of the facts of the case and the provision of law.

(5.) Accordingly, this Civil Revision is disposed of with a direction to the learned Court below to decide the matter of maintainability within three months from today
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