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Syed Mohd. HusaIn Vs. Raja Babu Kothiari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan
Decided On
Case NumberMisc. Revn. Petn. No. 30 of 2005
Judge
Reported inAIR1954Raj23
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 47, Rules 2 and 4(2); Evidence Act, 1872 - Sections 114
AppellantSyed Mohd. Husain
RespondentRaja Babu Kothiari
Appellant Advocate Jamna Prasad, Adv.
Respondent Advocate Rameshwardayal, Adv.
DispositionRevision allowed
Excerpt:
.....does not take away the status of the concerned person as a workman from both the establishments, but while granting and moulding the reliefs the court will take these facts into consideration. - shyamsingh on the opposite party was good notice under order 47, rule 4, the review application was capable of being considered and disposed of on merits by his successor. shyamsingh regarding issue of notice to be invalid and he has failed to exercise his jurisdiction in not having disposed of the review petition on its merits......petition was then heard by mr. satguru prasad who rejected it, mainly because in his opinion the notice issued by mr. shyamsingh was not proper.3. the chief contention in this revision is about the propriety of the notice issued by mr. shyamsingh, munsif, dholpur, on the opposite party. under rule 2 of order 47 an application for review of an order of a court other than a high court upon some ground other than the discovery of new and important matter or evidence as is referred to in rule 1 of order 47 or the existence of a clerical or arithmetical mistake or error apparent on the face of the record has got to be made only to the judge, who passed the order sought to be reviewed, but if the judge who made the order has ordered notice to issue under rule 4(2) proviso (a) of order 47.....
Judgment:
ORDER

Ranawat, J.

1. This is a revision petition filed on behalf of the judgment-debtor, Captain Sardar Syed Mohammad Husain against an order of the Munsif at Dholpur, dated 23-3-1949, rejecting his review petition on the ground that the predecessor-in-office of the Munsif, who made the order, did not issue a proper notice under Order 47, Rule 4(2), proviso (a), Civil P. C.

2. Mr. shyamsingh, the Munsif at Dholpur, made an order of attachment of some properties of the judgment-debtor in execution of a decree against him. of Raja Babu Kothiari for an amount of Rs. 8309/- on 20-1-1949. The judgment-debtor moved a review petition against the attachment order before Mr. Shyamsingh on 2-2-1949 and the learned Munsif alter getting it scrutinised by the office ordered issue of a notice on the opposite party on 10-2-1949. He was transferred and in his place Mr. Satguru Prasad was appointed Munsif on 10-2-1949. The review petition was then heard by Mr. Satguru Prasad who rejected it, mainly because in his opinion the notice issued by Mr. Shyamsingh was not proper.

3. The chief contention in this revision is about the propriety of the notice issued by Mr. Shyamsingh, Munsif, Dholpur, on the opposite party. Under Rule 2 of Order 47 an application for review of an order of a court other than a High Court upon some ground other than the discovery of new and important matter or evidence as is referred to in Rule 1 of Order 47 or the existence of a clerical or arithmetical mistake or error apparent on the face of the record has got to be made only to the Judge, who passed the order sought to be reviewed, but if the Judge who made the order has ordered notice to issue under Rule 4(2) proviso (a) of Order 47 such application can be heard and disposed of by his successor, it it be held that Mr. Shyamsingh did not order notice to issue the review application of the judgment-debtor would become incompetent and he would be, so to say, placed out of the court but if on the other hand the notice that was issued by Mr. Shyamsingh on the opposite party was good notice under Order 47, Rule 4, the review application was capable of being considered and disposed of on merits by his successor.

The Munsif, in holding that the notice issued by Mr. Shyamsingh was not proper, has based his decision only on the ground that Mr. Shyamsingh before ordering issue of notice did not hear the petition on merits and had no occasion to apply his mind to the case. The applicant challenges the correctness of the view taken by the Munsif. The record of the case is silent on the point and it does not disclose whether Mr. Shyamsingh before ordering issue of notice did in fact hear the applicant and considered the application on merits.

It appears from the record of the case that the review petition was presented by Mr. Jamna Prasad Advocate of the applicant and on 10-2-1949 when the order of issue of notice was made probably he was also present because his signatures appear at the bottom of the order, though the body of the order makes no mention of it. Assuming that Mr. Jamna Prasad was present at the time the order regarding issue of notice was made, it cannot be said that Mr. Shyam Singh did not hear him or did not apply his mind to the case in making the order. The finding of Mr. Satguru Prasad that Mr. Shyamsingh did not apply his mind or did not consider the merits of the case in making an order of issue of notice is without any foundation - there being no material on record to support this view. Ordinarily presumption under Section 114, Evidence Act, is that an order of a court of civil law is made after due consideration and unless it can be shown to have been otherwise the presumption would be in favour of the applicant. The Munsif, therefore, was wrong in treating the order of Mr. Shyamsingh regarding issue of notice to be invalid and he has failed to exercise his jurisdiction in not having disposed of the review petition on its merits.

4. This revision, therefore, succeeds and is accepted with costs. The Munsif is directed to hear both parties and decide the review application according to the law.


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