KEFAYAT KHAN Vs. ABDUL HALIM KHAN

JUDGEMENT

(1.) Challenge has been made to the inaction of the learned Civil Judge (Junior Division), Jagatsinghpur for not proceeding against the opposite party under Section 340, Cr.P.C. in Misc. Case No.118 of 2002 arising out of T.S. No.174 of 1990.

(2.) The factual matrix leading to the case of the petitioner is that the plaintiff had filed Title Suit No.174 of 1990 in the Court of the learned Civil Judge (Junior Division), Jagatsinghpur with a prayer for declaration that he is the legally born son of late Abdul Aziz through his mother Khairun Nisha. The present opposite party being defendant therein filed written statement stating that there was compromise between the plaintiff and present opposite party. It is alleged, inter alia, that since late Abdul Aziz died issueless and he had no son like Abdul Halim Khan and had only widow Nisha, the question of sonship of Abdul Halim Khan does not arise. The present petitioner is the sister's son to inherit his property. It is alleged that the compromise decree was obtained by the present opposite party by suppressing the material fact and applying fraud on the Court. So, the petition under Section 151, C.P.C. was filed for inquiry. Learned Civil Judge (Junior Division) dismissed the petition under Section 151, C.P.C. by observing that there is no fraud. The present petitioner carried the matter in the appeal before the learned Additional Sessions Judge, Jagatsinghpur vide Criminal Appeal No.5 of 2003. The said Court remanded the matter to the learned Civil Judge (Junior Division), Jagatsinghpur for de novo enquiry. Learned Civil Judge (Junior Division), Jagatsinghpur during de novo enquiry, after examining the parties and witnesses held that there is no necessity of filing any complaint under Section 340, Cr.P.C. Against that order, this present petitioner again filed Criminal Appeal No.24 of 2006 before the learned Additional Sessions Judge, Jagatsinghpur where the order of the learned Civil Judge, (Junior Division), Jagatsinghpur was confirmed. The present petitioner has challenged the said order in this application.

(3.) Mr. Pattnaik, learned counsel for the petitioner submits that since the material fact has been suppressed by the present opposite party and obtained a compromise decree by exercising fraud, it would affect the administration of justice. Moreover, he submitted that there is no question of adoption under Mahammedan Law and under no circumstances Abdul Halim Khan can be said to be the son of Adbul Aziz. So, the learned Civil Judge(Junior Division), Jagatsinghpur has committed error by not proceeding under Section 340, Cr.P.C. against the present opposite party. Also in criminal appeal, learned Appellate Court has failed to appreciate the material on record and committed the same mistake as committed by the learned trial Court. He also drew attention of the Court to the provision under Section 195(1)(b), Cr.P.C. where the Court concerned should make complaint for proceeding against wrongdoer to punish under Section 340, Cr.P.C.