NOWSHEN ALI Vs. KAFILUDDIN AHMED

JUDGEMENT

(1.) THIS is an appeal against an order of the D.C. of Nowgong rejecting an appln. by the present appln. for reopening a partition case on the ground that no notice of the partition proceedings was served upon him & that he was unaware of the proceedings until shortly before the date of his appln. The final orders in the partition case were passed on 24 -1 -1915, & the appln. equivalent to an appln under Order 9, Rule 13, Civil P.C., was preferred by the present applt. in May 1947. The learned D.C. did not deal with his appln. on its merits, nor did he allow the appct. an opportunity for adducing evidence & as such, the applt. was not in a position to do so in order to substantiate his case. The learned D.C., in view of the fact that the officer who was in seisin of the partition case passed an order during the pendency of that case that notices had been duly served, held that he had no jurisdiction to re -consider that matter & therefore, was not entitled to go into the question whether or not notices had been duly served on the appct. He accordingly rejected the appln. Hence this appeal.

(2.) IN my opinion, the learned D.C. was clearly wrong in his method of dealing with this matter. The fact that a previous D.C., during the pendency of the partition proceedings, had recorded an order, in the absence of this appct, that notices had been duly served, was not final, & it did not debar the D.C., from re -considering the matter on a proper appln. being filed in the nature of an appln. under Order 9, Rule 13, Code of Civil Procedure, & the learned D.C. ought to have given the present applt. an opportunity of substantiating his case & should then have dealt with the appln. on its merits. For the resp. in this case, it is conceded that the learned D.Cs. order dated 2 -5 -1947, was not, strictly speaking, a proper order; but it was contended that in view of the report submitted to this Ct. by the D.C. no useful. purpose would be served by directing a re -hearing. The learned D.C. in reporting on the matter to this Ct., has referred to certain documents from which the learned D.C., is of opinion that notices must have been served on the present applt. in the year 1914, if not earlier. I am not sure that the notices to which the learned D.C. adverts in his report are conclusive on the matter & I am of opinion that this matter ought to be decided after heating the applt. & after he has been given an opportunity to substantiate his case. The appeal is therefore, allowed; the order of the learned D.C. dated the 2 -12 -1947, is set aside, & the objection is remanded to him for consideration & disposal after giving the present applt. an opportunity to adduce evidence, if he can, in support of his objection. I make no order as to costs.