IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1389 of 2001 JAGDISH SINGH & ORS Versus TEJ NARAIN SINGH & ORS ----------- 16 15.10.2008 No one appears on behalf of the petitioners. Earlier this application was dismissed for default by an order dated 31.10.2007. However, the same was restored in view of an order dated 23.6.2008 in MJC No. 2937 of 2007. Mr. Kamil Akhtar an advocate of this Court however has appeared and prayed that he should be given some time to file a fresh Vakalatnama inasmuch as Mr. Fazal Ahmed was an advocate in this case has died recently some two months back and therefore, he will have to get a fresh Vakalatnama in order to make himself eligible to appear in this case. It has to be noted that initially this case was filed on 14.8.2001. Shree Kant Pandey was the advocate on record who had filed Vakalatnam along with Sri Shailendra Kumar Jha, an advocate of this Court. Subsequently, Md. Fazal Ahmed after obtaining no objection from Shree Kant Pandey on 28.1.2003 had filed Vakalatnama on 18.4.2004 on behalf of the three petitioners. In the restoration application, which was filed on 30.11.2007, specific plea was taken that Mr. Fazal Ahmed, one of the three advocates in this civil revision application had died on 28.10.2007 on account of which the case had got unattended. Taking this statement to be correct, this Court by an order dated 23.6.2008 passed in MJC No. 2937 of 2007 had restored this civil revision application. Today, however the date of death of Mr. Fazal Ahmed is being again changed by Mr. Kamil Akhtar, an advocate who was in fact the advocate in restoration application. It thus become clear that the whole purpose is to keep this civil revision application of the year 2 2001 pending only in order to keep the proceedings arising out of Title Suit No. 18/1984 pending in the Court below. It has to be noted that this civil revision application is directed against an order dated 2.6.2001 passed in Misc. Case No. 30/1999. The Misc. Case No. 30/1999 arises out of the Misc. Case No. 51/1992 which was filed for setting aside the judgment and order of Title Suit No. 18/1984 passed by the Sub-Judge-I, Bhabhua dated 13.5.1988. When the said miscellaneous case filed under Order IX Rule 13 read with Section 151 of the Code of Civil Procedure was rejected on 30.5.1994 on the ground that Sub- Judge, Sasaram has no jurisdiction to entertain Misc. Case No. 51/1992, a review application was filed under Order 47 Rule 1 of the Code of Civil Procedure read with Section 151 to review the said order dated 30.5.1994 passed in Misc. Case No. 51/1992 and restored Misc. Case No. 51/1992 after setting aside the judgment and decree dated 13.5.1988 in Title Suit No. 18/1984. From the impugned order dated 2.6.2001, it is also clear that the petitioners had neither filed any written statement nor contested the aforementioned suit, Title Suit No. 18/1984, and the suit was decreed in favour of the plaintiff Tej Narain Singh and others vide judgment dated 13.5.1988. It is equally important to note herein that an appeal was filed by the contesting defendant Mritunjay Singh and others being Title Appeal No. 45/1988 which was also dismissed and the decree thereafter was certified in course of Execution Case No. 13/1991 by execution of a registered sale deed dated 17.3.1992 in favour of the decree holder i.e. Tez Narain Singh and another. As noted above, when the application was filed by the petitioners for setting aside the decree dated 13.5.1988 before the Sub-Judge-1, Sasaram in Misc. Case No. 51/1992, though the suit had been decreed by Sub-Judge, Bhabua, it was 3 held by the Court of Sub-Judge-1, Sasaram that he had no jurisdiction to entertain and decide the application under Order IX Rule 13 and as such, the order dated 30.5.1994 was passed in Misc. Case No. 51/1992 holding that the Court of Sub-Judge-1, Sasaram had no jurisdiction to entertain and decide the application for restoration of the suit. The review application was filed in the Court of Sub-Judge, Sasaram and in course of pendency of such review application, when a prayer was made before the District & Sessions Judge, Sasaram, the review application was transferred to the Court of Sub-Judge-1, Bhabua who by the impugned order dated 2.6.2001 had rejected such review application on the ground that there was no apparent error on the face of record in the order dated 30.5.1994. The Court below in the impugned order has given cogent reasons and has held that the Court of Sub Judge-1, Bhabua is not the transferee Court of the Court of Sub-Judge, Sasaram. It is in this background that when this Court has found that there is virtually no explanation as to why even after the death of Mr. Fazal Ahmed, other two advocates namely Shree Kant Pandey and Sri Shailendra Kumar Jha have not chosen to appear and Mr. Kamil Akhtar, Advocate has made a wrong submission even about the date of death of Mr. Fazal Ahmed which has been sought to be changed orally by Mr. Kamil Akhtar contrary to the affidavit filed in the restoration application M.J.C. No. 2937 of 2007, it becomes clear that this civil revision application lacks both merit and bonafide. Merit, because the issue has acquired finality and the decree of the year 1988 in a suit of the year 1984, has already been executed after dismissal of the appeal by the Lower Appellate Court. Bonafide, because incorrect statement has been made for seeking adjournment of this case which as noted above has remained 4 pending for last seven years in course of which the case also got dismissed for default and had to be restored on the ground of death of one of the three counsels. Be that as it may, this Court on perusal of the materials on record including the counter affidavit filed on behalf of the plaintiffs/opposite parties and having taken note of the fact that the decree of specific performance of contract has already been executed in favour of the plaintiffs/opposite parties by execution of a registered sale deed on 17.3.1992, would find no merit in this application especially when the impugned order does not suffer from any jurisdictional error. That being so, this civil revision application is accordingly dismissed. Abhay Kumar/Rsh (Mihir Kumar Jha, J.)