IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1831 of 2006 SHRI JIYA LAL RAI, S/o late Jiwan Rai, R/o Village – Ganeshpur, P.O. Ahiyapur, P.S. Ahiyapur, Distt. –Muzaffarpur … Plaintiff / Opp. Party / Petitioner Versus 1. MOST. PANIYA DEVI @ PUNIYA DEVI, Wife of Late Raj Mangal Rai, 2. Shri Nawal Kishore Rai, 3. Shri Pappu Rai, 4. Shri Dilip Kumar, All sons of late Raj Mangal Rai, all R/o Village – Ganeshpur, P.O. Ahiyapur, P.S. Ahiyapur, Distt. –Muzaffarpur …….. Defendants / Applicatnts / Opposite Parties, 5. Shri Sitaram Rai, 6. Shri Lal Babu Rai, 7. Shri Shivji Rai, All sons of late Jiwan Rai, 8. Shri Awadhesh Rai, S/o late Nawal Rai, all R/o Village – Ganeshpur, P.O. Ahiyapur, P.S. Ahiyapur, Distt. –Muzaffarpur …. Plaintiffs / Opposite Parties / Opp. Parties. ----------- For the Petitioner:- Sri S.S. Dwivedi, Sr. Advocate with Mr. Ravi Shankar Dwivedi, Advocate. For the O.P. Nos. 1 to 4:- Mr. Sidheshwari Pd. Singh, Sr. Advocate with Mr. Krishna Kishore Sinha and Mr. J.S. Arora, Advocates. ----------- 6. 12.10.2009. Learned counsel for opposite parties No. 1 to 4 files supplementary counter affidavit. Heard learned counsel for the petitioner and learned counsel appearing on behalf of opposite parties no. 1 to 4. This revision is directed against the order dated 16.09.2006 passed by the Sub Judge V, Muzaffarpur in Misc. Case No. 3 of 2001 whereby the petition filed on behalf of the plaintiff - opposite party - petitioner raising objection that Misc. Case No. 3/2001 is 2 not maintainable had been rejected by the court concerned. Title Suit No. 190/2000 was filed for declaration of right, title and interest over the land in dispute and also for declaration that the entries in the survey records of rights are wrong, collusive and illegal. The aforesaid suit was decreed ex parte. The defendants – opposite parties’ no. 1 to 4 initially filed Misc. Case No. 3/2001 under Order IX Rule 13 of the Code of Civil Procedure (hereinafter referred to as `the Code’) for setting aside the ex parte decree. However, subsequently they also filed Title Appeal no. 14/2001 challenging the aforesaid decree. The aforesaid title appeal was dismissed vide order dated 22.12.2004, as contained in Annexure-A to the counter affidavit, on the ground of being non-maintainable. While passing the aforesaid order, the appellate court took notice that in Civil Revision No. 991/2002, this Court had directed the opposite parties to indicate their stand with regard to election of one forum amongst the two which he had already opted. However, the appellate court also mentioned in the order that from the certified copy of the 3 order sheet of Misc. Case, it does not appear that any withdrawal petition was filed by the applicant. Thus, on the ground that since the Misc. Case was filed on 30.04.2001, that is, prior to filing of Title Appeal No. 14/2001 on 1.5.2001, the subsequent title appeal is not maintainable and dismissed the same. That order was challenged in Civil Revision No. 524/2005, which was disposed of vide Annexure-2 on 15.4.2005 taking into notice the fact that the petitioner’s withdrawal petition could not be disposed of and the title appeal was dismissed. At the time of hearing, the petitioner therein made a prayer that in the changed circumstances that appeal has already been dismissed, they may be allowed to prosecute the Misc. Case irrespective of the fact that they had filed any withdrawal petition. The prayer was allowed and the Civil Revision was disposed of granting liberty to the petitioners (opposite parties no. 1 to 4 herein) to prosecute the Misc. Case irrespective of the fact that any petition for withdrawal of the Misc. Case had been filed. Learned counsel for the petitioner submitted that the petitioner, in fact, had not filed any petition for 4 withdrawal of the Misc. Case No. 3/2000. The petition filed therein has been appended as Annexure-1 to this Civil Revision. It was further submitted that much confusion has been created by filing such petition and it has been only prayed therein that during the pendency of Title Appeal No. 14/2001, the grounds covered by order IX Rule 13 of the Code shall be deemed to have been withdrawn and the parties may be heard and the Misc. Case be disposed of considering the grounds of Section 151 of the Code for which no evidence is required to be recorded. Thus, learned counsel had tried to impress upon this Court that some sort of fraud has been played by the opposite parties to obtain the order as contained in Annexure-2 by making a statement that a petition for withdrawal of the concerned miscellaneous case had been filed. Learned counsel for the opposite parties submitted that the petition, whatever for it was, could not be disposed of and it is a fact that the title appeal has been dismissed on the ground of pendency of the Misc. Case itself. The earlier order of this court was also to the effect that these opposite parties were given liberty to 5 choose one of the proceedings. By Annexure-2 this Court has again, in view of the fact that the appeal had already been dismissed, granted liberty to these opposite parties to pursue the Misc. Case so that they may not become remediless. It was contended that it had been stated before the court, as would be apparent from Annexure-2 itself, that the petition was not properly drafted; however, it was submitted that in any case, the same would be immaterial for the present purposes for the reason that even if it was to be assumed for the time being that no withdrawal petition was filed, it would not make any difference as on an earlier occasion this Court in an order passed in Civil Revision No. 991/2001 had granted liberty to the petitioner to choose one forum. The title appeal was dismissed on the ground that the miscellaneous case was preferred first and the same was pending. Net result is that these opposite parties are pursuing the remedy available in Misc. Case no. 3 of 2001, whereas the appeal had also not been dismissed on merit rather the same had been held to be non- maintainable as aforesaid Misc. case was pending. It is also pointed out that in Annexure-2, this Court had 6 clearly noticed the fact that this Misc. Case as well as the Title Appeal both had arisen on account of decreeing the suit ex parte. Thus, the opposite parties had been allowed to prosecute the Misc. Case. Having heard the rival submissions of the parties, I do not find any error committed by the court below in the order impugned warranting interference by this Court in its revisional jurisdiction. This Civil Revision is, accordingly, dismissed. However, the court below is directed to take every step possible for expeditious disposal of the Misc. Case concerned. dk ( Dr. Ravi Ranjan, J. )