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Dinanath Sao v/s Dinanath Thakur


    Civil Review 36 Of 2005

    Decided On, 19 August 2005

    At, High Court of Bihar

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

    For the Appearing Parties: -----------



Judgment Text

S.N.HUSSAIN, J.

(1.) Heard learned counsel for the petitioner who wants to review of the order of this Court dated 14.12.2004 passed in Civil Revision No. 1785 of 2003 which was allowed by the said order and the orders dated 5.8.2003 and 29.7.1999 passed in Miscellaneous Appeal No. 37 of 1999 and Miscellaneous Case No. 1 of 1993 respectively, were set aside and the ex parte Judgment and decree passed in Title Suit No. 25 of 1986 was also set aside and the trial Court was directed to hear the Title Suit afresh and decide the same on merits after hearing the parties in accordance with law.

(2.) It may be pointed out that full length argument was made by the learned counsel for the parties whereafter the said Civil Revision was decided by the order under challenge in which all points were considered.

(3.) Now, this review petition has been filed on two grounds. Firstly, that in view of the latest amendment in the Code of Civil Procedure and decisions of the Hon'ble Apex Court in case of Surya Dev Rai v. Ram Chander Rai and Ors. and in case of Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and Ors. no such revision petition was maintainable and if the, revision-petitioners were aggrieved they could have filled a petition in this Court under the provision of Articles 226 or 227 of the Constitution of India. The second ground taken by the learned counsel for the revision-petitioner is that even if such Civil Revision was maintainable, then also the provisions of Order V Rule 20 and Order IX Rule 6 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) were not properly considered as in case of substituted service under the provision of Order ' V Rule 20 of the Code recording satisfaction by the Court was not necessary and furthermore the provision of Order IX Rule 6 of the Code was applicable only if the plaintiff appears and defendant does not appear, but here in the instant case, the defendant had appeared and hence there was no occasion for application of the provision of Order IX Rule 6 of the Code and the Miscellaneous Case was rightly dismissed.

(4.) So far the maintainability of the Civil Revision is concerned, three Judges Bench of the Hon'ble Apex Court in case of Sadhna Lodh v. National Insurance Co. Ltd. and Anr., have specifically held that where remedy for filing a Civil Revision under Section 151 of the Code has been expressly barred by a State enactment, only in such cases a petition under Article 226 of the Constitution of India would lie instead of Civil Revision. In the said circumstances, Civil Revision was quite maintainable specially in the instant case when there is no State enactment expressly barring filing of petitions under Section 115 of the Code and cause of justice and equity was at stake.

(5.) In another decision the Hon'ble Apex Court in case of Neela Kantan v. Mallika Begum, has specifically held that in cases where finding is recorded by Courts below without any legal evidence on record or on misreading the evidence or suffers from any legal informity which materially prejudices one of the parties or the finding is perverse, it would be open for the High Court to set aside such findings and to take a different view. Hence, on this score also the revision filed by the defendant-petitioner was maintainable, specially when the order under revision had decided the case.

(6.) It is apparent from the records of the case that Title Suit was filed in the year 1986 and the trial Gourt for reasons best known to it took up the matter in a haste-post haste manner and went on to fix the case for ex-parte hearing within a few months, although, it was noted in the order-sheet of 25.8.1.986 that paper cutting was torn and no satisfaction was recorded that the same was a paper publication. Hence, even in the absence of a specific provision it was the duty of the Court to see as to whether the said substituted service was proper and whether the publication of notice was genuine and correct. But without considering the said matter, the Court went on with the ex-parte hearing of the case and decreed the suit.

(7.) So far the question of Order IX Rule 6 of the Code is concerned, learned counsel for the petitioner is not correct in saying that when the defendant has appeared in a suit, even if he does not appear in Court on the date fixed, the said provision would not be applicable and no Miscellaneous Case can be filed under it. The said contention of the learned counsel is absolutely frivolous as it is apparent from the said provision itself that when the defendant does not appear on the date fixed, when the suit is called on for hearing and the plaintiff appears, then the provision of Order IX Rule 6 of the Code would be applicable and accordingly Miscellaneous case can be filed. Here, in the instant case the defendant might have appeared in the suit but on the date concerned he was definitely not present in the Court and hence the provision of Order IX Rule 6 of the Code was applicable and the Miscellaneous Case filed against the ex-parte decree was legally maintainable.

(8.) In the aforesa

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id facts and circumstances of this case, there is neither discovery of any new and important matter or evidence which was not within petitioner's knowledge earlier, nor there is any mistake apparent on the face of the record, nor do I find any sufficient reason to interfere with the order passed in Civil Revision. Accordingly this review petition is completely misconstrued as all the points raised are without any legal basis and it appears to be an attempt to merely delay the starting of the suit as per the revisional order and hence this Civil Review petition is dismissed.
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