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Narendra Babu and anr. Vs. Vidya Sagar Awasthi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 183 of 1976
Judge
Reported inAIR1978All415
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151
AppellantNarendra Babu and anr.
RespondentVidya Sagar Awasthi and ors.
DispositionRevision allowed
Excerpt:
civil - limitation - sections 115 and 151 of code of civil procedure, 1908 - suit filed by the plaintiff for cancellation of will obtained by fraud - during the hearing of a revision for some other proceeding plaintiff filed another suit against applicant for possession - applicant filed written statement claming to be true hirer of the will - munsif accepted the contention of applicant and stayed the subsequent suit - plaintiff filed a revision - revision held to be time barred by the court - further observation of irregularities by the lower court - not permissible as it was without jurisdiction. - - district judge beginning with the words, there are however, certain matters on which i would like to make observation......was barred by time.2. the relevant facts in brief are that the plaintiff opposite-party no. 1 had filed a suit no. 13 of 1964 against the applicants for cancellation of a will alleged to have been made in favour of applicant no. 1 by smt. sundari devi on 20-6-59. his allegation was that the will was not executed by smt. sundari and in case it was found to have been executed, it was under fraud.3. sometime during the hearing of a revision in connection with some other proceeding in that earlier suit, the plaintiff-opposite party no. 1 filed another suit no. 53 of 1967 against those very applicants for possession. he claimed that he was owner of the property being heir of smt. sundari devi and that he had been dispossessed by the defendants-applicants.4. the applicants filed a written.....
Judgment:
ORDER

Mahavir Singh, J.

1. This is a revision by the defendants against a part of the Order of learned Second Addl. District Judge, Lucknow, in revision No. 154 of 1974 by which he gave certain directions to the Lower Court while holding that revision was barred by time.

2. The relevant facts in brief are that the plaintiff opposite-party No. 1 had filed a suit No. 13 of 1964 against the applicants for cancellation of a will alleged to have been made in favour of applicant No. 1 by Smt. Sundari Devi on 20-6-59. His allegation was that the will was not executed by Smt. Sundari and in case it was found to have been executed, it was under fraud.

3. Sometime during the hearing of a revision in connection with some other proceeding in that earlier suit, the plaintiff-opposite party No. 1 filed another suit No. 53 of 1967 against those very applicants for possession. He claimed that he was owner of the property being heir of Smt. Sundari Devi and that he had been dispossessed by the defendants-applicants.

4. The applicants filed a written statement claiming to be heirs under the will dated 20-6-59. They also alleged that as the question of validity of the will, which will be in issue in this subsequent suit, was already in issue in the earlier suit No. 13 of 1964 filed by the plaintiff respondent, that subsequent suit should be stayed under Section 10 C. P. C.

5. The learned Munsif accepted the later contention of the defendants-applicants and stayed the hearing of the subsequent suit vide order dated 21-3-73.

6. The plaintiff-respondent then filed a revision No. 154 of 1974 on 1-1-74 in the court of the District Judge, Lucknow. That revision was transferred to the Second Addl. District Judge for disposal.

7. The learned Addl. District Judge held that the revision was time-barred and so was liable to be rejected. However while parting with the revision, he proceeded to make certain observation. He observed that an earlier application moved by the plaintiff respondent for striking off the issue of ownership had not been decided by the Munsif and that he should have decided it before disposing of the application about stay of the subsequent suit under Section 10 C. P. C. and that, if necessary, the issue about title could have been struck off. He also observed that if necessary, the Munsif could have directed the plaintiff-respondent to seek amendments so as to delete the basis of ownership in the subsequent suit. He further observed that if the plea of ownership was struck off, the suit would remain under Section 9 of the Specific Relief Act and then it may not be necessary to stay the suit under Section 10 C. P. C. Accordingly he directed the trial court to dispose of that application (53-C) and then to redetermine the question of stay of the suit under Section 10 C. P. C.

8. It is against this part of the order dealing with the above referred observations and directions that the defendants have come in revision before this court. They contend that once the court had held that revision was barred by time, it became functus officio and had no longer any right or power to issue any direction or give any advice to the Lower Court.

9. The respondents have not appeared in spite of notice. So the case is being heard ex parte.

10. The contention raised by the defendants-applicants has force. Once the court comes to a conclusion that the revision was beyond time and so was liable to be dismissed, it no longer had any jurisdiction to deal with any matter how so irregular it might have been, An Additional District Judge cannot take cognisance of any irregularity suo motu. That is the jurisdiction of a District Judge. He hears only those cases which are transferred to his court by the District Judge. These observations were also not necessary for the finding that the revision was barred by time.

11. Hence the revision succeeds. This part of the order of the learned Addl. District Judge beginning with the words, 'There are however, certain matters on which I would like to make observation........ keeping in view the observations made in this order,' is quashed.

12. In the circumstances of the case, the costs would be easy.


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