IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1782 of 2008 SITA RAM RAM & ANR Versus SHAMBHU NATH SINGH & ANR ----------- 3 10/11/2008 Heard counsel for the petitioners. Reference may be made to the order of this Court dated 24.10.2008, which reads as follows : - "Put up this case after vacation as prayed for in order to enable the counsel for the petitioner to produce any binding precedent that a person already on record by way of defendant in a suit and debarred from filing pleading/leading evidence due to his own lach/lapse will still be entitled to a second opportunity only because he has been later on sought to be substituted as a heir after the death of his parents who were also party to the same suit." Counsel for the petitioner in this regard with reference to the procedure under order XXII Rule 4 (2) of the Code of Civil Procedure (C.P.C.) is of the view that if a person, who was defendant, if still made a party by way of substitution of another defendant, such person will still have right to make any defence appropriate to his character as a legal representative of the deceased, defendant. He has also referred to a judgment of this Court in the case of ‘Ugratara Devi Vs. 2 Deputy Collector of Land Reforms & Ors.‘ reported in AIR 1974 Patna 162. From a perusal of the plaint it would transpire that the plaintiff, opposite party had filed a suit for eviction, wherein it was stated that the suit property was purchased from the petitioners on 23.12.1980 and thereafter the same suit property had given on rent to them including their mother Ram Dulari Devi. The plaintiff, opposite party, in fact, had set out the grounds for seeking eviction of all three of them and the averments made in the plaint would clearly go to show that there were absolutely no separate case of the plaintiff as against mother, vis-à-vis, the two sons (petitioners). As the turn event could have been, the mother sought permission from the Court to contest the suit and had filed her written statement, whereas, the two sons did not choose either to seek leave of the Court or to file their separate written statement. The Mother is said to have died later on and it is only after her death when these two 3 petitioners, already on record, were sought to be substituted as legal heirs. At this stage they woke up and found themselves in a precarious situation, in as much as, they had never sought leave before the Court to contest the eviction suit nor had chosen to file any written statement. In such a situation, they first of all filed an application on 13.6.2007, stating therein, that leave should be given to them to contest the suit. Such application was dismissed by an order dated 13.9.2007 by the trial court by recording that after 24 years of filing of the suit such permission could not have been accorded to the petitioners. Thereafter, the petitioners came out with yet another application dated 12.11.2007 in which their prayer was that the written statement of the mother be allowed to be adopted by them on the ground that it was the mother who was contesting the case on their behalf as well and after her death these petitioners, having been substituted, had got fresh lease of life and right to 4 contest the suit. The petitioners conveniently forgot that they were parties to the suit right from the year 1983 and had an independent right and the relief of eviction against all three of them, as per averment in the plaint, was one and the same. The petitioners also had to take into consideration that the leave was sought only by their mother to contest the suit and the written statement was filed only by their mother only on her own behalf. The court below, therefore, having taken into consideration all aspect of the matter had rejected such prayer by order dated 11.1.2008 which is Annexure-1 to this application. The reasoning of the court below is that if the petitioners were allowed to adopt the written statement of mother it would virtually mean that the petitioners who were already defendants to the suit and had never been allowed to contest the suit by the Court would indirectly be getting such leave of the Court even in absence of such leave of the court. Be that as it may, the order dated 5 11.1.2008 rejecting such prayer of the petitioners was also allowed to become final and was not challenged before this Court. The petitioners thereafter had adopted yet another novel and unique method to come on the records by making a prayer for recall of the order dated 11.1.2008, in as much as, a detailed application was filed to recall that order under purported guise of section 151 of the Code of Civil Procedure as would be apparent from Annexure-2. From the contents of such application it would appear that there was no specific procedure for recall of an order the counsel for the petitioner while justifying the aforementioned application has submitted that such application was filed for review of the order dated 11.1.2008. In the opinion of this Court such argument has to be noticed for its being rejected, in as much as, scope of review under section 114 read with order 4, vis- à-vis, exercise of inherent power under 6 section 151 of the C.P.C. cannot be equated as it was the case of the petitioners that they had deliberately sought recourse only under section 151 of the C.P.C. The said application has now been dismissed by the impugned order dated 21.7.2008 and it has recorded therein that it would virtually amount to questioning the order of the Court dated 11.1.2008 which has already become final. It has to be noted here that the said application was, in fact, filed on 22.4.2008, i.e, after expiry of the period of ninety days and thereafter neither it was actually an application for review nor there was any scope in the court below to review the order as there was no apparent error on the face of record pointed out in such application. Mr. Verma, learned Senior counsel appearing on behalf of the petitioners very fairly submits that there is no provision under C.P.C. which would support his contention that if any person is impleaded as a party to the suit but if such person does choose to contest the 7 suit and in the process is also debarred/precluded from contesting the suit, he can still get a fresh lease of life when he is sought to be substituted as legal heirs/ representatives. He however has relied on certain observations in the case of Ugratara Devi (Supra). The facts of that case were entirely different. There a daughter who was not a party to the suit was in fact substituted and in that context the Division Bench of this Court had made observation that she had acquired such right by virtue of a legal representative of the original claimant (father). Such is not the case here. In the present suit, in as much as, as has been noted above, the petitioners were not only defendant nos. 2 and 3 of the suit but there was same and common case against them and in fact the petitioners had appeared in the suit but thereafter did not chose to either seek to leave to contest the suit in terms of section 14 of the B.B.C. Act or to file their written statement. That being so, the case of the 8 petitioners now sought to be developed that they may be allowed to step the shoes of their mother is wholly misconceived. That apart, this Court would not encourage the practice of reopening the issue in the name of recall of the order. Once an order was passed by the Court below on merits whether it be right or wrong, that had to be taken into consideration by the superior Court. If there was any infirmity in the order the same could have been interfered under section 115 of the C.P. C. but the same cannot be set aside in the name of recall. This Court therefore does not find any jurisdictional error in the impugned order. Accordingly, this application is dismissed. ( Mihir Kumar Jha, J. ) Abhay Kumar