Surajdeo Bharti vs Bishwanath Sah and Others

Navaniti Pd. Singh, J.—Heard. This is an application by the defendant, whose application under Order IX, Rule 13 CPC was rejected by the trial Court on the basis of judgment of this Court since reported in Satya Narayan Sah Vs. Brij Gopal Mundra . The trial court held that in such a situation, a proceeding emanating from Order VIII, Rule 10 CPC, an application under Order IX, Rule 13 CPC would not lie. This order the trial court passed on remand by this Court wherein he was directed to decide the question of maintainability.

On behalf of the petitioner reliance has been placed on two later judgments of this court being the case of Thakurbari vs. Tej @ Tek Narain Singh reported in 2000(3) BLJ 268. While delivering the said judgment their Lordships considered the earlier judgment of this court reported in AIR 1991 Patna 60 and held that the same was not an authority in view of different judgments of the Apex Court, which have not been noticed. This Court having considered the earlier judgment and taken a different view, I am bound by the later judgment and cannot base my judgment on an earlier judgment which has been explained subsequently. Recently in the case of Lalit Narain Singh Vs. The President, Religious Trust Board and Another , this Court again had occasion to examine the same very proposition. After examining the various cases this Court again came to the view that an application under Order IX, Rule 13 CPC in such a situation was maintainable. Their Lordships considered the earlier judgment of this Court as well.

In that view of the matter I am left with no option but to set aside the order and hold that an application under Order IX, Rule 13 CPC was maintainable and the trial court is thus directed to consider the same on merit and decide the case accordingly. This civil revision application is allowed.