Ali Mohd Darzi vs Mohammed Yousuf Bhat and Another

J.P. Singh, J.—Ali Mohammed Darzi filed a suit in the Court of Munsiff Chadura, seeking a decree for declaration with consequential relief

of injunction against Mohd Yousuf Bhat and Qumer-u-Nisa alias Nasreen. Defendants filed their written statement raising preliminary as also other

objections to the suit of the plaintiff.

Vide order dated 17.08.2005, following issues were framed by the learned Munsiff:

i. Whether plaintiff is owner and in possession of suit property, a house measuring 33' X 50', three storied, tin roofed, if so, whether the same is in

uninterrupted peaceful possession of same for last 36 years; liquidating all dues of water, electricity etc. OPP

ii. If issue No. 1 is decided in affirmative, whether he (plaintiff) has spent three lacs, on the improvement of same. OPP

iii Whether defendants are trying to dispossess, plaintiff from suit property and leveled vague allegations with agencies, if so, whether they do not

have any right/locus stand to do so. OPP

iv. Jurisdiction, pecuniary & territorial. OPP/OPD

v. Valuation, Court fees and cause of action. OPP/OPD

vi. Misjoinder of necessary parties, and maintainability. OPD

vii. Relief. OPP

Issue Nos. 4, 5 & 6 were treated as preliminary issues. Parties were, accordingly, directed to argue the case on the next date of hearing, which

appears iron the record to be 13.09,2005. The record further hears testimony to the fact that some other date appears to have been fixed by the

learned Munsiff, which was later on recorded as 13.09.2005 but without any initial of the learned Presiding Officer. On 13.09.2005, the case

could not be taken up for hearing and was, accordingly, adjourned lo 25.10.2005 when costs amounting to rupees, nine hundred (Ks.900/-) were

paid. This order further--indicates that an application had been moved by the plaintiff for summoning his witnesses, which was allowed and the

witnesses ordered to be summoned for 30.11.2005. The case was adjourned to 30.11.2005 This is a crucial date of hearing when the plaintiff

insisted for issuance of process for securing the presence of his witnesses, whereas learned Advocate for the defendants informed the Court that

the suit stood dismissed vide , order dated 25.10.2005 and as such the witnesses sought to be summoned by the plaintiff could not be so

summoned. It appears that the Presiding Officer of the Court of Munsiff Chadura stood transferred on (his date of hearing. Learned Munsiff

appears to have adjourned the case to 27.12.2005. On this date of hearing, the learned Presiding Officer records that he had received a sealed

envelope from his predecessor-in-interest, which was kept alongwith file.

This revision petition of the plaintiff has arisen in the aforementioned circumstances. Plaintiff/petitioner' seeks appropriate orders to set the

records straight by invoking revisional jurisdiction of this Court. Respondents despite issuance of notices have opted -to-remain absent. They are,

accordingly, set ex-parte.

I have heard Sh. G. Ali, learned Counsel for the petitioner. Records of the trial Court too have been perused.

The sequence of events leading to the filing of this revision petition indicate that the then learned Munsiff, Chadura, had issued two contradictory

orders on 25.10.2005, viz. order dated 25.10.2005, recorded as interim order on regularly maintained interim orders-sheet, indicates the allowing

of the application of petitioner/plaintiff for summoning of witnesses and posting of the case to 30.11.2005, whereas the second order, which

appears to have been sent by the learned Magistrate after he stood posted out from the Court of Munsiff, Chadura, is a type written order but

without any date of decision recorded thereon. Column D.O.D. typed on the face of the type written order is kept blank.

Two things, which would baffle one are; firstly, as to how could the learned presiding officer of the Court of Munsiff Chadura, pass an order

directing return of plaint, without either posting the case for hearing the parties or hearing them on the issues?; and secondly, after having permitted

the plaintiff to lead evidence on preliminary issues and directing posting of the case to 30.11.2005, how could the learned Munsiff decide the issues

framed in the case when he stood already transferred from the Court of Munsiff, Chadura?

The typed order alleged to have been signed by Munsiff Chadura, on 25.10.2005, which was later sent by him in a sealed cover to new

presiding officer, is without jurisdiction, for, vide interim order dated 25.10.2005, the case stood already adjourned to 30.11.2005. Type written

order of the learned Munsiff forming part of the records, is, thus held to be without jurisdiction and is, accordingly, set aside.

Learned Munsiff, Chadura, is, accordingly, required to ignore this order and proceed with the case in accordance with law.

Before proceeding further in the matter, learned Munsiff is directed to re-examine the pleadings of the parties and their preliminary statements

so as to find out as to what are the issues which are required to be framed in terms of Order XIV of the Code of Civil Procedure, lie may retain

only those issues or frame fresh issues are required to be so framed strictly in terms of Order XIV of the Code of Civil Procecdure. Only those

issues may be frame as preliminary issues, which are so warranted under Order XIV Rule 2(2) of the CPC and on which no evidence may be

required for the decision thereof. Orders passed by the Munsiff on 1708.2005 and onwards shall stand set aside.

The sequence of events mentioned in paragraph No. 6 of this order paints a dismal picture reflecting on the functioning of learned Munsiff, who

was in position as Munsiff on 25.10.2005. Sacrosanctity attached to the judicial orders is because of the confidence, which is reposed in these

orders by one and all. Regularity of these orders is, thus, presumed additionally in view of illustration (e) appended to Section 114 of the Evidence

Act, 1977. No attempt can, thus, be tolerated to fiddle with the sanctity of the orders of the Court, be he/she the presiding officer of the Court

itself.

A copy of this judgment shall be sent to Registrar General of this Court for placing it before Lord Acting Chief Justice for appropriate action

against the Munsiff, who had passed two contradictory orders, thereby misusing his authority as a Judicial Officer.

This revision petition is, accordingly, disposed of on the terms indicated above.