Ashok Kumar Pandey vs Pandey Mithilesh Kumar Sinha and Others

Navaniti Prasad Singh, J.—Heard.

This application has been filed by the petitioner who wanted to intervene as a defendant in Title Partition Suit No. 357 of 2003 pending before Sub judge VI, patna. By the impugned order dated 07.06.2005, the learned Sub judge has rejected his application for intervention as a defendant. The plea of the petitioner in support of his intervention and being added as a party was that he was the adopted son of late Pandey Ambika Prasad and, as such, was an interested party in the said partition suit as the partition was sought for amongst the descendants of the same heir of the joint family. In support of his application for being added as a party in the partition suit, the petitioner had placed reliance apart from other principally on two documents. The first was the matriculation certificate granted in the year, 1974 by the Bihar School Examination Board which showed the petitioner to be the son of Pandey Ambikia Prasad. The second was the deposition of Shri Krishnandan Sahay, the former Mayor of Patna as recorded on commission in Title Suit No. 454 of 1983. The trial Court has not accepted the application merely on the ground that the petitioner having filed the said Title Suit No. 454 of 1983 before the Sub judge VI, Patna in which evidence was partly recorded but ultimately the title suit and application for its restoration was both dismissed for default and, as such, evidence recorded therein was of no consequence.

I have perused the impugned order and in my opinion, at this stage, there was no jurisdiction in the Court to assess the evidence as to the fact of petitioner being son of Pandey Ambika Prasad or not. It was only prima facie that the Court had to look into the said document because once the petitioner is added as a party and any person challerges his parentage and, thus, the right to inherit, an issue in that regard would be framed and evidences led by either party. I may also mention here that the trial Court committed error of law in holding that as the suit filed by the petitioner had been dismissed for default, evidence recorded therein could not be looked into. I hold so because if a suit is dismissed for default, there is no decision but that Joes not mean that the evidence recorded therein vanish. Evidences are depositions of witnesses recorded on oath and remain part of the records of the Court. The Court records can be led in evidence. Its evidentiary value is something which the Court may consider ultimately but it cannot be said that if the suit is dismissed, the evidence also stands dismissed.

In that view of the matter, the impugned order is set aside and this revision application is allowed.