IN THE HIGH COURT OF JUDICATURE AT PATNA C. REV. No.305 of 2009 1. Shree Shankar Sanskrit Prathmik Sah Madhya Vidyalaya Mokar through Sri Ayodhya Prasad Singh s/o Sri Rajdeo Singh resident village and PO Mokar P.S. Agrar Dist. Rohtas Secretary of the School 2. Hira Prasad s/o Basawan Sharma resident of Mohalla Mahabir Asthan Sasaram Town Ward no.1 P.S. Sasaran Town P.S. Sasaram Dist. Rohtas Headmaster of Sri Shankar Sanskrit Prathmik Sah Madhya Vidyalay Mokar. Plaintiffs-petitioners Versus 1. Kripashankar Tiwari s/o late Kalika Pd. Tiwari at and P.O. Mokar P.S. Agrer Dist. Rohtas Defendant-Opposite party Ist set 2. Bihar Sanskrit Siksha Board, Budha Colony, Patna 3. Chairman, Bihar Sanskrit Siksha Board, Budha Colony, Patna Defendants-Opposite parties 2nd set ----------- For the petitioners: Mr Raghib Ahsan, Sr. Advocate Mr Kamla Kant Tiwary, Advocate For opposite party nos.2 & 3: Mr Surendra Kumar, Advocate -------------- 07/ 16.04.2010 Heard learned counsel for the petitioners as well as learned counsel for opposite party nos.2 and 3. Although notices have been validly served upon opposite party no.1 and he has also appeared by way of filing vakalatnama in this case but neither any reply/counter affidavit to the said review petition has been filed by him nor learned counsel for opposite party no.1 has appeared in court today to contest the claim of the petitioners. 2. This petition has been filed for review of order dated 23.11.2004 by which a bench of this court dismissed C.R. No. 1541 of 2004 as follows:- “Learned counsel for the petitioners could not be able to satisfy the court how the court below is wrong in passing the order impugned. Accordingly, the civil revision petition is dismissed.” 3. The matter arises out of Title Appeal no. 27 of 2001 - 2 - (13/2001) which was finally called out for hearing on 23.03.2004 when both sides appeared and argument on behalf of appellants was heard in part and the case was directed to be placed on 06.04.2004 for further arguments. However, when on the next date i.e. 06.04.2004 no one appeared on behalf of appellants the said title appeal was dismissed for default. 4. Against the aforesaid order dated 06.04.2004 passed by Additional District Judge V, Rohtas, appellants-petitioners filed Miscellaneous Case No.7 of 2004 on the ground that when title appeal was already heard in part earlier there was no occasion for dismissing it on default. Hence review of the said order was sought. 5. In the said Miscellaneous Case on 28.07.2004 counsel for the petitioners appeared but service report of notices was not received and hence it was directed to be placed on 24.08.2004 awaiting the service report. Furthermore, on 24.08.2004 no one appeared on behalf of the petitioners and the Miscellaneous case was dismissed for default. 6. Against the said order dated 24.08.2004 passed by the Additional District Judge V, Rohtas in Miscellaneous Case No.7 of 2004, appellants-petitioners filed C.R. No. 1541 of 2004 on the ground that since on 24.08.2004 the case was listed only with respect to service report and not for hearing , there was no occasion for the court below to dismiss the Miscellaneous case for default. In this regard reference has been made to Order IX Rule 3 of the Code of Civil Procedure. The said civil revision has been dismissed on 23.11.2004 by a bench of this court. - 3 - 7. Learned counsel for the petitioners submits that the said order of this court was passed without considering the facts and circumstances of the case and without appreciating the specific provision of law which amply proved that order passed in Miscellaneous case was absolutely without jurisdiction and hence it was to be set aside under the provision of 115 of the of the Code of Civil Procedure. 8. On the other hand, learned counsel for opposite party nos. 2 and 3 contested the claim of the petitioners and stated that the appellants-petitioners did not appear in the title appeal on the date fixed and also did not appear in the Miscellaneous case on the date fixed and hence the court below was quite justified in dismissing the case for default. It was further submitted that this court after considering the entire materials in detail had dismissed the civil revision filed by the appellants-petitioners and hence there is no occasion for review of the said order. 9. It was also claimed by opposite party nos.2 and 3 that the petitioners had earlier filed Miscellaneous Case No.17 of 2004 for restoration of Miscellaneous Case No.7 of 2004 and hence there was no occasion for the petitioners to file the aforesaid civil revision. He also averred that similarly Miscellaneous Case No.9 of 2004 was also filed by the petitioners which was dismissed by the court below vide order dated 13.03.2008. Against which C.R. No. 718 of 2008 has been filed by the petitioners which is pending in this court. 10. So far Miscellaneous Case No.17 of 2004 is concerned, no doubt it was filed for restoration of Miscellaneous Case No.7 of - 4 - 2004 but it was withdrawn by the petitioners as they intended to file C.R. No. 1541 of 2004 in the High Court. Furthermore, so far Miscellaneous Case No.9 of 2004 is concerned, it was dismissed vide order dated 13.03.2008, against which C.R. No. 718 of 2008 has been filed by the petitioners which is pending. This matter is much subsequent to the question involved in C.R. No. 1541 of 2004 and any decision passed in C.R. No. 1541 of 2004 or in the instant review petition would render C.R. No. 718 of 2004 infructuous at the cost of the petitioners themselves. In the said circumstances, the said points are not relevant for the decision of the instant civil review petition. 11. So far the main point involved in the instant case is concerned, it is not in dispute that on 24.08.2004 Miscellaneous Case No.7 of 2004 was placed with regard to service report of notices on the other side and hence in case of non-service of notices the only order which was required to be passed was for issuance of fresh notice. Thus, it is quite apparent that the said Miscellaneous Case was not placed or listed for hearing on 24.08.2004 and hence there was no occasion for Additional District Judge V, Rohtas to dismiss the Miscellaneous Case itself for default, which was clearly a jurisdictional error, notices of which had to be taken by this court under its revisional jurisdiction in view of the settled principles of law regarding civil revision. Non-consideration of the said error of jurisdiction, while deciding the civil revision is clearly an error apparent on the face of the record in the order under review. 12. In the said circumstances order dated 23.11.2004 passed in C.R. No. 1541 of 2004 is hereby reviewed and recalled and the - 5 - instant civil review petition is allowed with a direction to put up the said civil revision for admission before an appropriate bench as per the direction of Hon’ble the Chief Justice. shahid (S.N. Hussain, J)