IN THE HIGH COURT OF JUDICATURE AT PATNA Civil Writ Jurisdiction Case No.9564 of 2011 Mahant Sudama Das Versus Ram Priya Das @ Mahanth Ram Pr ---------------------------------- O R D E R 18. 25.10.2011. 1. Heard the learned counsel, Mr. S.S. Dwivedi on behalf of the petitioner and Mr. Shekhar Singh, the learned counsel on behalf of the respondent No.13. 2. This application under Article 227 of the Constitution of India has been filed by the intervener- petitioner against the order dated 17.06.2006 passed by Munsif, Sikrahana, Motihari, East Champaran in Title Suit No.157 of 1990 rejecting the application filed by the petitioner for recall of the order dated 19.03.2005. 3. It appears that the plaintiff-respondent No.1 and 2 filed Title suit No.157 of 1990 seeking declaration that plaintiff No.2 is a private family trust of plaintiff No.1 and he is sole Mutawali and the trustee of the same. The plaintiff also prayed for declaration that the trust deed dated 11.02.1984 is invalid and not binding on the plaintiff and also prayed for setting aside two registered deeds executed by Shyam Dasi and Ors. Shyam Dasi was the defendant No.1. She died on 15.11.2004. The plaintiff filed application for expunging her name which was allowed. - 2 - 4. The present petitioner filed application for being substituted in place of said Shyam Dasi. The contention of the petitioner was that he is the chela of Shyam Dasi and is the Mahant of the Math and, therefore, he is the legal representative. The petitioner claimed for being added as party. The respondent objected. After hearing the parties on 19.03.2005, the learned Court below ordered that it is necessary to enquire under Order 22 Rule 5 C.P.C. to determine as to whether he is the chela or not. The petitioner filed civil revision No.1096 of 2005 against the said order before the High Court. On 12.08.2005, the civil revision was dismissed as withdrawn granting liberty to the petitioner to raise jurisdiction question. Thereafter, the petitioner filed an application before the Court below for recall of the order dated 19.03.2005 which was rejected by the impugned order 5. The learned senior counsel, Mr. S.S. Dwivedi appearing on behalf of the petitioner submitted that the Religious Trust Board admitted the petitioner to be the Mahant of Math and chela of Shyam Dasi and, therefore, he is necessary party. He filed application under Order 1 Rule 10 for being added as party on the ground that he is necessary party on the death of Shyam Dasi. There is no provision for enquiry under Order 22 Rule 5 C.P.C. when an application under Order - 3 - 1 Rule 10 C.P.C. is filed. Therefore, the order passed by the Court below on 19.03.2005 was against the provision of law but the learned Court below rejected the application for recall of that order by the impugned order. 6. From perusal of the impugned order, it appears that this question was raised before the Court below. The learned Court below found that in the application filed by the petitioner dated 09.12.2004, there is no mention that the application was filed for being added as party under Order 1 Rule 10 C.P.C. or under Order 22 Rule 4 C.P.C. From perusal of the said application, it appears that in the said application at paragraph 1, the petitioner stated that Shyam Dasi died on 16.11.2004 leaving behind her chela who is heir and legal representative of said Shyam Dasi. So, he may be added in place of Shyam Dasi. Observing this, the learned Court below found that although no provision has been quoted in the said application but from the perusal of the words used, it appears that the application was filed under Order 22 C.P.C. and, therefore, refused to recall the order. 7. Further, it appears that so far this observation of the Court below is concerned, there is no dispute. For the first time, in the recall application, it was raised that the application was filed under Order 1 - 4 - Rule 10 C.P.C. From perusal of the order dated 19.03.2005, it appears that the submissions of both the parties and the allegations made in the applications were considered and then it was directed to hold an enquiry under Order 22 Rule 5 C.P.C. as the plaintiff was objecting to the addition of petitioner. The said order was challenged before the High Court and the High Court by terms of order dated 12.08.2005, dismissed the civil revision No.1096 of 2005 as withdrawn. Therefore, the original order dated 19.03.2005 passed by the trial Court became final as the High Court did not interfere with the same. In such circumstances, there was no question of recall of the order by the trial Court arises. The High Court only granted liberty to raise question of jurisdiction. 8. In view of the above facts and circumstances of the case when original order was not interfered with by the High Court in civil revision application, the learned Court below could not have recalled the said order, particularly in view of the observation made in the impugned order. I, therefore, find no jurisdictional error or illegality in the impugned order and accordingly, this writ application is dismissed. Patna High Court, Patna The 25thday of October, 2011 Sanjeev/N.A.F.R. (Mungeshwar Sahoo,J.) - 5 -