(1.) Heard learned counsel for the petitioner, learned counsel for opposite party No. 1, Bihar State Board of Religious Trust (hereinafter referred to as 'the Board' for the sake of brevity) and learned counsel for opposite party No. 2, Sri Sri 108 Narsingh Bhagwan Trust (hereinafter referred to as 'the Trust' for the sake of brevity).
(2.) The petitioner was sole plaintiff of Title Suit No. 244 of 1987 which he had filed for declaration of his title over the suit property, which opposite parties claim to be the property of the Trust governed by the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as 'the Act' for the sake of brevity). In the said suit the Trust (opposite party No. 2) and the Board (opposite party No. 1) were impleaded as defendant Nos. 1 and 2 respectively, but they after appearing in the suit on 13-3-1989 through their counsel, did not appear thereafter nor contested the same. In the said circumstances the plaintiff filed a petition on 9-8-1991 under Order VIII, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) and accordingly after examining plaintiff's evidence and after hearing him the learned trial Court, namely, the learned Subordinate Judge, Bhagalpur pronounced his judgment on 29-8-1991 decreeing the suit, following which a decree was also drawn on 11 -9-1991, against which no appeal was filed.
(3.) It further transpires that much thereafter on 29-6-1995 defendant No. 1 through defendant No. 2 filed Miscellaneous Case No. 1
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4 of 1995 for setting aside the said decree under Order IX, Rule 13 of the Code on the ground that they had no knowledge or information earlier as their counsel was gained over by the plaintiff and only when the plaintiff disclosed about the judgment and decree before local people on 1-5-1995 they came to know about it, whereafter enquiries were made and copies of the same were obtained. In the said miscellaneous case the plaintiff raised the objection regarding its maintainability on three grounds, namely, (i) that it was filed after about four years without being accompanied by a limitation petition for condoning the delay, (ii) that the Board which was defendant No. 2 was not impleaded in the miscellaneous case although it was a necessary party, and (iii) that the decree in question was not an ex parte decree under Order IX, Rule 11 of the Code, rather it was a decree under Order VIII, Rule 10 thereof, hence the provision of Order IX, Rule 13 of the Code was not attracted. However, the learned Subordinate Judge-I, Bhagalpur by his order dated 13-9-1996 dismissed the miscellaneous case on the only ground that in the instant circumstances it was not maintainable under the provision of Order IX, Rule 13 of the Code. Against the said order the Board (opposite party No. 1) filed Miscellaneous Appeal No. 58 of 1996, which was allowed by the learned Additional District Judge-IV, Bhagalpur by the impugned order dated 13-12-2000, holding that miscellaneous case was maintainable against a decree passed under Order VIII, Rule 10 of the Code.
(4.) So far the question of maintainability of a miscellaneous petition under Order IX, Rule 13 of the Code against an ex parte decree passed under Order VIII, Rule 10 of the Code is concerned, it is now well settled by various decisions including the decision of a Division Bench of this Court in the case of State of Bihar v. Raj Ballam Singh, reported in 1986 Pat LJR (NOC) 33 that such a miscellaneous case is maintainable. In the said circumstances, learned counsel for the petitioner conceded the said objection and challenged the impugned order of the learned Court of appeal below on the other two grounds.
(5.) Learned counsel for the petitioner submitted that the first ground of limitation was raised by the plaintiff-petitioner in his objection filed in the miscellaneous case. He further stated that the said miscellaneous case having been filed about four years after the suit was decreed ex parte without any limitation petition for condoning the delay, hence the bar provided by the Limitation Act would be applicable. He also averred that it was not even necessary for the opposite parties to raise the question of limitation as obviously the miscellaneous case was filed much belatedly and it was the duty of the Court itself to consider that question first. In support of this contention he relied upon a decision of the Apex Court in the case of Gagandeep Pratishthan Pvt. Ltd. v. Mechano, reported in (2002) 1 SCC 475 : (AIR 2002 SC 204) and submitted that not complying the said requirement the impugned order is obviously illegal.
(6.) So far the second ground regarding non-impleadment of defendant No. 2 in the miscellaneous case is concerned, he submitted that defendant No. 2 was the Bihar State Board of Religious Trust (opposite party No. 1) and was impleaded in the suit as a necessary party because relief was claimed against it also and in all matters concerning a Trust, the Board has to be impleaded. He further contended that not only the Board but the other defendants were also not impleaded in the miscellaneous case, although every party of the title suit and the decree is a necessary party for the purposes of such case. He thus submitted that even if this point was not raised by the plaintiff in his objection, it was the duty of the Court to consider the same as it was with respect to defect of parties apparent on the face of the record, hence on this score also the impugned order is fit to be rejected.
(7.) On the other hand, learned counsel for opposite party No. 1 has submitted that although the defendants had appeared in the suit but no date was fixed by the Court for filing the written statement, whereafter even the date of ex parte hearing was not fixed by the trial Court which started hearing on 28-8-1991 when one plaintiffs witness was examined and the judgment was delivered on 29-8-1991, which was against the specific provision of law. In this regard he relied upon a decision of this Court in the case of State of Bihar (supra) reported in 1986 Pat LJR (NOC) 33 as well as a decision of the Hon'ble Apex Court in the case of Balraj Raneja v. Sunil Madan, reported in (1999) 8 SCC 396 : (AIR 1999 SC 3381).
(8.) Learned counsel for the said opposite party No. 1 further averred that there is specific provision in the Limitation Act, namely, Section 10 which provided that no such suit shall be barred against trustees and their representatives in whom property has become vested in trust for any specific purpose. Learned counsel for opposite party No.1 also contended that so far the question of recovery of possession is concerned, there is no time bar in view of Section 10 of the Indian Limitation Act. On this point he relied upon a decision of the Hon'ble Apex Court in the case of Wali Mohammed v. Smt. Rahmat Bee, reported in AIR 1999 SC 1136.
(9.) With respect to the second ground he stated that properly comprising any religious or charitable endowment shall be deemed to be property vested in the Board for a specific purpose and the manager of the property shall be deemed to be the trustee thereof. He further averred that clause 43(m) and (v) of the Religious Trust Board's Bye-laws, 1955 specifically provided that the powers and duties of the Board with respect to defending any suit or proceeding and to make application to the District Judge in case of failure of performance of any religious, pious or charitable act, shall be exercised and performed by the President of the Board. He further submitted that it was the President of the Board, who had filed the miscellaneous case for the Trust. Hence he averred that all the necessary parties of the suit were parties in the miscellaneous case also. Thus he contended that neither the question of limitation nor the question of defect of parties raised by the plaintiff-petitioner was legal and valid.
(10.) Opposite Party No. 2 is the Trust and the learned counsel appearing for it has also contested the claim of the petitioner on all the points concerned but in sum and substance they are elaboration of the same grounds, which have been taken by learned counsel for opposite party No. 1. They also averred that in a similar case with respect to the same Trust (opposite party No. 2), this Court in the case of Sri Sri 108 Narashing Bhagan Thakurbari v. Tej alias Tek Narain Singhm, reported in (2000) 3 BLJ 268 : (1999 AIHC 4592) has held that such miscellaneous case was maintainable.
(11.) After hearing learned counsel for the parties and after perusing the materials on record, it is quite apparent that the question of maintainability of a miscellaneous case against a decree of the trial Court passed under Order VIII, Rule 10 of the Code has been considered by various High Courts as well Hon'ble Apex Court, in various decisions, reported in AIR 1991 Patna 60; 1986 Pat LJR (NOC) 33; AIR 1981 Madras 258; AIR 1985 Kant 77; AIR 1988 Kerala 161; AIR 1988 Kerala 304; AIR 1994 Delhi 367; AIR 1995 Orissa 45; AIR 1987 SC 42; AIR 1988 SC 1381 and after considering all the aforesaid decisions as well as the provisions of law including the amended provisions of Order VIII of the Code, this Court in the case of Sri Sri 108 Narashing Bhagwan Thakurbari (1999 AIHC 4592) (supra) specifically held that a decree passed under Order VIII. Rule 10 of the Code is an ex parte decree and the same can be assailed for the purpose of setting aside under Order IX, Rule 13 of the Code, although such ex parte decree can also be assailed under Section 96 of the Code. Hence in that view of the matter, learned counsel for the petitioner had no option but to concede the said question of maintainability in the instant case.
(12.) However, learned counsel for the petitioner has challenged the impugned order of the learned Court of appeal below on the other two grounds, namely, (i) that the miscellaneous petition was filed after about four years without being accompanied by a limitation petition for condoning the delay, and (ii) that the Board was not impleaded in miscellaneous case although it was a necessary party. There was no occasion for the learned counsel for the petitioner to rake up the said issues at this stage as the miscellaneous case was dismissed only on the ground of maintainability, whereas the appellate Court found the case to be maintainable, set aside the order passed in the miscellaneous case and remanded the matter to the first Court to consider the other points, namely, the aforesaid two points as they were considered by none of the two Courts. But since the said two points have been specifically hammered by the learned counsel for the petitioner, they are hereby decided.
(13.) So far the question of limitation, raised by the petitioner, is concerned, it is quite apparent that the specific case of the defendants-opposite parties in the Court below was that due to laches on the part of their lawyer Pairvees were not made on the date fixed due to which no step could be taken on their behalf and the Court proceeded with the suit, although it had no jurisdiction to do so as according to Section 92 of the Code no suit claiming any of the reliefs specified therein can be legally instituted in respect of any such Trust and also according to Sections 48 and 72 of the Act which provided that except certain special circumstances no suit can be filed with respect to any immovable property of a Religious Trust. These questions were important questions of law and it was the duty of the learned Court below to consider the same before passing any decree in the suit but it is apparent that the said questions were not at all considered by the learned trial Court while decreeing the suit.
(14.) It also transpires that provision of Order VIII, Rule 1 prior to its amendment in 2002 provided that the written statement had to be filed in a suit within such time as the Court may permit, but in the instant case it appears that no date was fixed in the suit by the trial Court for filing the written statement and the suit was taken up for hearing. It also transpires from the record that no date of ex parte hearing was fixed by the trial Court, although it was its legal duty to first fix a date for ex parte hearing and only thereafter to start hearing of the suit. It also transpires that the trial Court started the hearing of the suit on 28-8-1991 and delivered the judgment on 29-8-1991. It is well settled principle of law that the trial Court had no jurisdiction to pass an order of posting the suit for ex parte hearing without fixing, a time for the defendants to file their written statement and only when on the date fixed the written statement is not filed then on the next date the suit can be fixed for ex parte hearing. But here in the instant case neither the date for filing written statement was fixed nor any order for posting the suit for ex parte hearing was passed and the learned Court below for reasons best known to it decreed the suit in a haste-post-haste manner ignoring the specific provision of law.
(15.) It was also contended by the defendants-opposite parties in the Court below that due to the aforesaid reasons they had no knowledge or information about the proceedings in the suit or the judgment and decree of the trial Court and as soon as they learnt, about it they filed the miscellaneous case. Furthermore, Section 10 of the Limitation Act, 1963 specifically provided that no suit against a person in whom property has become vested in trust for any specific purpose, shall be barred by any length of time and for the purposes of this section any property comprised in a Hindu Charitable Endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof. In the aforesaid circumstances, there is no question of any bar of limitation as the defendants-opposite parties had no knowledge about the proceeding and the decree in suit and there was no question of any bar of limitation provided in law in the instant circumstances.
(16.) So far the question of defect of parties are concerned, it is quite apparent that miscellaneous case was filed by Shri Shri 108 Narshing Bhagwan through Bihar State Board of Hindu Religious Trust, Patna and hence it is apparent that it was the Board which had filed the miscellaneous case on behalf of the Trust. Thus in the aforesaid circumstances, there was no question of any defect of parties. Furthermore, Bye-laws of the Board also provided that it was the duty of the Board to defend any suit or proceeding or to file any such petition with respect to any Trust under it. Hence filing of the miscellaneous case by the Board for the Trust cannot be legally held to be defective or erroneous.
(17.) In the aforesaid circumstances, both the pleas raised by the learned counsel for the petitioner regarding limitation and defect of parties are not sustainable in law as per the discussions made above. Moreover, the plaintiff-petitioner did not raise the said two questions of limitation and defect of parties either in the miscellaneous case or in the miscellaneous appeal and for the first time these questions are being raised here, which clearly depict the illegality and baselessness of his contentions against the grounds raised by the defendants-opposite parties, specially when the only ground of non-maintainability raised by the plaintiff- petitioner in the Court below has been conceded here being clearly against the established principle of law.
(18.) Hence, I do not find any illegality or jurisdictional error in the impugned order and accordingly this civil revision is dismissed. Petition dismissed