Full Judgment
1 L.P.A. No.509 of 2014 IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 509 of 2014 Navrang Tiwary, S/o Late Shiv Shankar Tiwary, R/o Vill- Dumariya, P.O. - Dumariya, P.S. - Garhwa, Dist-Garhwa, Jharkhand … … … Appellant Versus Usha Devi, D/o Ram Prasad Tiwary, W/o Jitendra Kumar Pathak, R/o Vill-Chaukri, P.O.-Haider Nagar, P.S.-Haider Nagar, Dist- Palamau, Jharkhand … ... ... Respondent ------ CORAM: HON'BLE MR. JUSTICE D. N. PATEL HON'BLE MR. JUSTICE RATNAKER BHENGRA ----- For the Appellant: Mr. Arun Kumar Dubey For the Respondent: M/s. B.V. Kumar, Janardan Dubey ------ 04/Dated:
07. h October, 2015 Per D.N. Patel, J1 This Letters Patent Appeal has been preferred against the judgment and order delivered by learned Single Judge in W.P. (C) No.216 of 2014 dated 3rd November, 2014, whereby the writ petition preferred by this appellant was dismissed. The learned Single Judge has confirmed the order passed in Misc. Civil Appeal No.10 of 2012 in Partition Suit No.54 of 19789 passed by the District Judge-II, Garhwa.
2) Counsel for the appellant submitted that the respondent had instituted Partition Suit No.54 of 1979 before the Court at Palamau. Thereafter, the original plaintiff preferred an application for appointment of the receiver before the Court of Sub. Judge, Palamau. The said application was allowed and, hence, the defendant, i.e. the present appellant, preferred Misc. Appeal No.30 of 1982 before the Hon'ble Patna High Court who passed the final order on 20th December, 1991 and directed the trial Court to dispose of the suit as expeditiously as possible.
3) It further appears that thereafter the record and proceedings of Partition Suit No.54 of 1979, which was called by the Hon'ble Patna 2 L.P.A. No.509 of 2014 High Court, was not traceable and had never reached the trial Court. Initially, the matter was conducted in District Palamau and, thereafter, from District Palamau, another District Garhwa was carved out. Thus, the Partition Suit No.54 of 1979 is now to be conducted by Garhwa Court. The record and proceedings of Partition Suit No.54 of 1979 was not traceable since long and ultimately it was found out on 22nd November, 2011.
4) It is further submitted by the counsel for the appellant that meanwhile, an application was given by the legal heir of defendant No.1 that the defendant no.1 has already expired in the year 2002 and, therefore, without joining the legal heirs, the suit cannot be proceeded further. Despite this application, plaintiff had not joined the legal heirs of defendant No.1. Ultimately, Partition Suit was abated for want of joining of legal heirs vide order dated 18th July, 2012.
5) It is further submitted by the counsel for the appellant that against this order, Misc. (Civil) Appeal No.10 of 2012 was instituted by the legal heir of original plaintiff. At this stage, counsel for the respondent submitted that the appellant of Misc. (Civil) Appeal No.10 of 2012 was preferred by the original plaintiff No.2 in the Partition Suit No.54 of 1979. The District Court, Garhwa allowed the Misc. (Civil) Appeal No.10 of 2012 with delay condonation application. The legal heirs of the original defendant No.1, defendant No.2 and defendant No.3 were permitted to be joined as parties in the Partition Suit No.54 of 1979. This Misc. (Civil) Appeal No.10 of 2012 was allowed by the District Court, Garhwa vide order dated 13th December, 2013 against which W.P. (C) No. 216 of 2014 was preferred by this appellant, which was dismissed by the learned Single Judge, against which the present Letters Patent Appeal has been preferred.
6) Counsel for the appellant has submitted that the major ground of delay has not been properly appreciated by the learned District Judge, Garhwa, nor by the learned Single Judge of this Court. Secondly, it is 3 L.P.A. No.509 of 2014 submitted by the counsel for the appellant that since long, the application was preferred by the original legal heirs of original plaintiff No.1 for joining him as party-respondent, but, deliberately, the original plaintiff had not joined the legal heirs of defendant No.1 as party- defendant. Thus, there is a deliberate avoidance by the original plaintiff. These aspects of the matter have not been properly appreciated by the learned District Court Garhwa as well as by the learned Single Judge. Hence, this Letters Patent Appeal may kindly be allowed.
7) Counsel for the respondent submitted that she is the original plaintiff No.2 of Partition Suit No.54 of 1979. In the said suit, application for appointment of the receiver was preferred which was allowed by the trial Court, against which, the original defendant had preferred application before the Hon'ble Patna High Court and, therefore, the record and precedings of Partition Suit No.54 of 1979 was called for by the Hon'ble Patna High Court. Thereafter, Hon'ble Patna High Court disposed of the appeal by giving direction to the trial Court to decide the Partition Suit as expeditiously as possible. Thereafter, the record and proceedings of Partition Suit No.54 of 1979 was not traceable. Later on, from District Palamau, District Garhwa was carved out. The matter was transferred from District Palamau to District Garhwa, but, the original record and proceeding of Partition Suit No.54 of 1979 was not traceable and ultimately, it was found out that wrongly it was sent to District Latehar and after lot of efforts, ultimately from District Latehar, it was sent to District Garhwa on 22nd November, 2011 and immediately thereafter, i.e. on 25th January, 2012, an application was preferred for substitution of legal heirs of defendant No.1, defendant No.2 and defendant No.3. This application was dismissed by the trial Court and, therefore, the original plaintiff No.2 had preferred Misc. Appeal No.10 of 2012 before the District Court, Garhwa. This was allowed by the District Court, Garhwa vide 4 L.P.A. No.509 of 2014 order dated 13th December, 2013 and by imposing some costs, this Misc. Appeal was allowed. Legal heirs of defendant No.1, defendant No.2 and defendant No.3 were allowed to be joined as parties- defendants in the Partition Suit No.54 of 1979. Even the original plaintiff has already expired, but, the plaintiff No.2 is the sole legal heir (daughter) of the plaintiff No.1. Hence, there is no question of substitution of the plaintiff No.1 whatsoever arises. These aspects of the matter have been properly appreciated by the learned Single Judge while dismissing the writ petition being W.P. (C) No. 216 of 2014 vide order dated 3rd November, 2014.
8) It is further submitted by the counsel for the respondent that no Letters Patent Appeal can be preferred against a writ application under Article 227 of the Constitution of India. The counsel for the respondent (original plaintiff No.2) has also relied upon the decision rendered by this Court reported in 2006(1) J.C.R. 1 (Jhr)(FB) and has submitted that whenever the learned Single Judge exercised power under Article 227 of the Constitution of India, the Letters Patent Appeal under Clause 10 of the Letters Patent is not maintainable and, hence, this Letters Patent Appeal may not be entertained by this Court. It is further submitted by the counsel for the respondent that the whole litigation in the writ as well as in this L.P.A. are frivolous and, therefore, this Letters Patent Appeal may be dismissed with costs. This is nothing but a delaying tactics adopted by the appellant. Legal heirs of original defendant No.1, defendant No.2 and defendant No.3 have already been brought on record to be joined as party-defendants in the Partition Suit No.54 of 1979. There is already a delay in disposal of the Partition Suit and further delay has been added by this appellant in filing initially the writ petition and, thereafter, this Letters Patent Appeal, otherwise, the District Court has already passed an order on 13.12.2013 permitting the legal heirs to be joined as parties-defendants. The right to file a suit by respondent (original plaintiff No.2) stands as it is. Even as on today, 5 L.P.A. No.509 of 2014 such right cannot be taken away demanding the partition and, therefore, this Letters Patent Appeal may not be entertained by this Court. Reasons :-
9) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal, mainly for the following facts and reasons: - (i) The respondent is a plaintiff No.2 in Partition Suit No.54 of 1979 preferred in the trial Court at Palamau. (ii) In the said Partition Suit, there were two plaintiffs. Plaintiff No.1 is mother and the plaintiff No.2 is daughter. Plaintiff No.1 expired by now leaving behind the sole legal heir i.e. the plaintiff No.2, who is the respondent in this Letters Patent Appeal. (iii) The original plaintiff in Partition Suit No.54 of 1979 had preferred an application for appointment of the receiver under Order XL Rule 1 of the Code of Civil Procedure, 1908. This application of appointment of receiver was allowed by the trial Court, Palamau, against which, the defendant had preferred an appeal before the Hon'ble Patna High Court. The record and proceedings of Partition Suit No.54 of 1979 was called for by the Hon'ble Patna High Court. This Misc. Appeal No.30 of 1982(R) was disposed of by Hon'ble Patna High Court vide order dated 20th December, 1991 giving a direction to the trial Court to dispose of the Partition Suit as expeditiously as possible. (iv) It appears that the record and proceedings of Partition Suit No.54 of 1979 which was called for by Hon'ble Patna High Court was never received back by the concerned trial Court. The same was traceless. (v) Thereafter, from District Palamau, another District, viz., 6 L.P.A. No.509 of 2014 Garhwa was carved out and the Partition Suit No.54 of 1979 now is transferred to District Garhwa. (vi) It further appears from the facts of the case that the original record and proceedings of Partition Suit No.54 of 1979, by mistake, was sent to Latehar and, therefore, ultimately it was reached at Garhwa on 22nd November, 2011 and immediately thereafter, i.e. on 25th January, 2012, plaintiff No.2 of Partition Suit No.54 of 1979 preferred an application under Order XXII, Rule 4 of the Code of Civil Procedure, 1908 to join the legal heirs of defendant No.1, defendant No.2 and defendant No.3, whereby all the defendants had expired by that time, with delay condonation application. It is submitted by the counsel for the appellant that defendant No.1 expired in the year 2002, defendant No.2 expired in the year 1997 and defendant No.3 expired in the year 1992. (vii) It appears that this application was opposed by teeth & nail by this appellant and trial Court of District Garhwa dismissed the application preferred by the plaintiff No.2 and, therefore, the original plaintiff No.2 preferred an appeal before the District Court, Garhwa being Misc. Appeal No.10 of 2012, which was allowed by the District Court, Garhwa vide order dated 13th December, 2013. (viii) Looking to the order passed by the District Court, Garhwa in Misc. Appeal No.10 of 2012 dated 13th December, 2013, it appears that no error has been committed by the said Court in allowing the Misc. Appeal No.10 of 2012. Even a cost has been awarded as there was some delay in preferring application for joining the defendants. We think that it was sufficient in the interest of justice. Original plaintiff No.2 has also a right to proceed further in the Partition Suit No.54 of 7 L.P.A. No.509 of 2014 1979. (ix) Against the order passed by the Garhwa Court in Misc. Appeal No.10 of 2012 order dated 13th December, 2013, writ petition was preferred by this appellant being W.P. (C) No. 216 of 2014 which was dismissed by the learned Single Judge vide order dated 3rd November, 2014. We have perused the said order and we see no error committed by the learned Single Judge in dismissing the writ application preferred by this appellant. The legal heirs of defendant No.1, defendant No.2 and defendant No.3 of the Partition Suit are rightly permitted to be joined as defendants. The delay was because of non-availability of the original record as mentioned in detail in the order dated 13th December, 2013 by District Court, Garhwa as well as mentioned in detail in the order passed by learned Single Judge in W.P. (C) No.216 of 2014 dated 3rd November, 2014. We see no reason to interfere with the order passed by the learned Single Judge. The District Court, Garhwa has rightly observed in the order dated 13th December, 2013 that surviving plaintiff can always proceed ahead in the suit and the suit which was disposed of as abated by the trial Court was rightly quashed and set aside by the District Court, Garhwa and rightly the direction was given by the District Court, Garhwa to the trial Court to decide expeditiously the Partition Suit No.54 of 1979.
10) In view of the aforesaid facts and reasons, there is no substance in this Letters Patent Appeal. Hence, the same is hereby dismissed. (D. N. Patel, J) Manoj/ (Ratnaker Bhengra, J)