IN THE HIGH COURT OF JHARKHAND AT RANCHI.
W.P. (C) No. 6231 of 2008
...
Ram Chandra Agarwal ... Petitioner
-V e r s u s-
Ashok Thackar ... Respondent
...
CORAM: - HON'BLE MR. JUSTICE D.G.R. PATNAIK.
...
For the Petitioner : - Mr. P.P.N.Roy, Sr. Advocate.
For the Respondents: - Mr. S.N.Das, Advocate
...
4 / 20.05.2009
Considering the explanations offered by learned counsel for the
petitioner that the petitioner has himself sworn the affidavit of the writ
application, but some documents were missing and therefore the
affidavit sworn by the pairvikar may not be treated as defect and may
be ignored, the defect pointed out by the office is ignored.
2. Respondent has appeared through his lawyer Sri S.N.Das.
3. The petitioner’s prayer in this writ application is for quashing
the order dated 03.10.2007 passed in Misc. Case No. 36 of 2007 by the
Munsif-1st, Dhanbad whereby an order allowing the petition under
Section 5 of the Limitation Act filed by the Respondent No. 2 was
passed and also for quashing the order dated 23.06.2008 passed in the
aforesaid proceeding whereby the petitioner’s objection raised vide
petition dated 22.02.2008 was rejected.
4. Sri P.P.N.Roy, learned counsel for the petitioner explains that the
petitioner had filed a Title (Eviction) Suit No. 51 of 2005 in the Court of
the Munsif seeking eviction of the respondent/defendant from the suit
premises under the provisions of the Bihar Buildings (Lease, Rent &
Eviction) Control Act. When despite issuance of notice and even after
publication of the notice in the daily newspapers, the defendant did not
appear, the Court proceeded to decree the suit ex-parte vide its order
dated 05.12.2006. Thereafter, the petitioner filed Execution Case No. 26
of 2007 and the decree was partly executed by delivering possession of
the suit premises to the petitioner on 21.09.2007. After part execution of
the decree, the defendant filed a Misc. Case No. 36 of 2007 on 29.09.2007
in the Court below under Order IX, Rule 13 read with Section 151 of the
Civil Procedure Code for setting aside the ex-parte decree.
Vide order dated 01.10.2007, the learned Munsif had directed the
defendant/petitioner of the Misc. Case No. 36 of 2007 to submit his
arguments on the ground of limitation. Later, by the impugned order
dated 10.10.2007, learned Court below allowed the petition filed by the
respondent/defendant, even without issuing any prior notice to the
petitioner or without giving any opportunity to the petitioner of being
heard.
5. Learned counsel for the respondent is present and concedes that
the petitioner was not served with any notice.
6. From the facts stated, it is apparent that the procedure adopted
by the learned Court below in passing the impugned orders on the
issue of limitation, without issuing any notice to the petitioner and
without affording him opportunity of being heard, is totally against the
legal procedures and against the principles of natural justice. Such
orders cannot be sustained.
8. In the light of the above facts, the impugned orders dated
03.10.2007 and 23.06.2008 passed by the learned Munsif 1st, Dhanbad in
Misc. Case No. 36 of 2007 are hereby quashed. The learned Court below
is directed to pass a fresh order on the respondent’s/defendant’s
limitation petition after giving opportunity to the petitioner of being
heard.
With these observations, this writ application is disposed of.
Let a copy of this order be given to the learned counsel for the
respondent State.
(D.G.R. Patnaik, J.)
Birendra/