SAKILA BANO Vs. SK. USMAN

JUDGEMENT

(1.) This matter is taken up through hybrid mode.

(2.) The Petitioner in this CMP seeks to assail the order dtd. 5/5/2022 passed by learned Civil Judge(Senior Division), Balasore in CMA No.554 of 2020 (37 of 2020) arising out of C.S. No.595-966 of 2018, whereby he rejected an application filed under Order IX Rule 4 of C.P.C. read with Sec. 5 of the Indian Limitation Act, 1963 praying, inter alia, to recall the order of dismissal of the counter claim filed by the Petitioner-Defendant No.3.

(3.) Mr. Basu, learned counsel for the Petitioner submits that by virtue of the dismissal of the counter claim, a valuable right of the Petitioner-Defendant No.3 is being taken away. In the counter claim, the Defendant No.3 prayed for declaration of her right, title and interest over Schedule 'B' and 'C' property, which she received from her mother by virtue of an oral gift. Relying upon the decision in the case of Hafeeza Biba and another -v- Shaikh Farid (dead) by Lrs. and others reported in AIR 2011 SCC 1695, Mr. Basu, learned counsel for the Petitioner submits that in Mohameddan law, an oral gift (Hiba) is permissible and it requires no execution of formal document or registration. In view of the impugned order, the Petitioner-Defendant No.3 has become remediless. In view of the above, Mr. Basu, learned counsel for the Petitioner submits that interest of justice will be best served if the Petitioner is permitted to move a fresh application with better particulars for setting aside the order dtd. 14/1/2020 passed in C.S. No.595-966 of 2018, whereby the counter claim of the Petitioner was rejected.