MANAGER THAKUR Vs. NARAIN PD SINGH

JUDGEMENT

(1.) The plaintiff has come in revision against the order dated 23-5-1979. passed by the Subordinate Judge, Siwan in Title Suit No. 127 of 1976, by which the learned Judge has held that the suit, filed by the petitioner, has abated under Section 4 (c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as 'the Act').

(2.) From the order impugned, it is apparent that the petition for abating the suit under Section 4 (c) of the Act, which was filed on 23-5-1979 by the defendant, was disposed of on the same day without the plaintiff's counsel having been heard, which is clear from paragraph 2 of the order. From the impugned order it is gathered that the counsel for the plaintiff did not turn up when the case was called out. Apparently to me it appears that this order is in violation of the proviso to Section 4 (c) of the Act, which enjoins a duty to notice the party and give an opportunity of being heard, which necessarily means a reasonable opportunity. The petition under Section 4 (c) of the Act has been disposed of on the day of filing itself, which does not seem to be proper, because requirement of giving to the other side an opportunity of being heard naturally means providing an opportunity for countering the facts, besides this the order appears to be a mere routine order. I find that the court below has failed to apply its mind to the facts and law arising in the case.

(3.) Learned counsel for the petitioner has pointed out that the plaintiff-petitioner filed the aforesaid suit, i.e.. Title Suit No. 127 of 1976, for specific performance of contract for sale on the basis of a Mahadnama executed by the opposite party with regard to the land in question. The learned counsel has further submitted that apart from the fact that the impugned order is violative of the proviso to Section 4 (c) of the Act, the court below has failed to take into consideration that the contract for sale of immovable properties does not create any interest in the immovable properly and there being no prayer for declaration of right and interest in the properties, the proviso to Section 4 (c) of the Act is not attracted in case of specific performance of contract. Reliance has been placed on the case of Sukhilal Sah v. Angrahit Jha (1979 BBCJ (HC) 566): (AIR 1980 Pat 18).