LALIT NARAIN SINGH Vs. PRESIDENT RELIGIOUS TRUST BOARD

JUDGEMENT

(1.) Heard learned counsel for the petitioner, learned counsel for opposite party No. 1, Bihar State Board of Religious Trust (hereinafter referred to as 'the Board' for the sake of brevity) and learned counsel for opposite party No. 2, Sri Sri 108 Narsingh Bhagwan Trust (hereinafter referred to as 'the Trust' for the sake of brevity).

(2.) The petitioner was sole plaintiff of Title Suit No. 244 of 1987 which he had filed for declaration of his title over the suit property, which opposite parties claim to be the property of the Trust governed by the Bihar Hindu Religious Trusts Act, 1950 (hereinafter referred to as 'the Act' for the sake of brevity). In the said suit the Trust (opposite party No. 2) and the Board (opposite party No. 1) were impleaded as defendant Nos. 1 and 2 respectively, but they after appearing in the suit on 13-3-1989 through their counsel, did not appear thereafter nor contested the same. In the said circumstances the plaintiff filed a petition on 9-8-1991 under Order VIII, Rule 10 of the Code of Civil Procedure (hereinafter referred to as 'the Code' for the sake of brevity) and accordingly after examining plaintiff's evidence and after hearing him the learned trial Court, namely, the learned Subordinate Judge, Bhagalpur pronounced his judgment on 29-8-1991 decreeing the suit, following which a decree was also drawn on 11 -9-1991, against which no appeal was filed.

(3.) It further transpires that much thereafter on 29-6-1995 defendant No. 1 through defendant No. 2 filed Miscellaneous Case No. 14 of 1995 for setting aside the said decree under Order IX, Rule 13 of the Code on the ground that they had no knowledge or information earlier as their counsel was gained over by the plaintiff and only when the plaintiff disclosed about the judgment and decree before local people on 1-5-1995 they came to know about it, whereafter enquiries were made and copies of the same were obtained. In the said miscellaneous case the plaintiff raised the objection regarding its maintainability on three grounds, namely, (i) that it was filed after about four years without being accompanied by a limitation petition for condoning the delay, (ii) that the Board which was defendant No. 2 was not impleaded in the miscellaneous case although it was a necessary party, and (iii) that the decree in question was not an ex parte decree under Order IX, Rule 11 of the Code, rather it was a decree under Order VIII, Rule 10 thereof, hence the provision of Order IX, Rule 13 of the Code was not attracted. However, the learned Subordinate Judge-I, Bhagalpur by his order dated 13-9-1996 dismissed the miscellaneous case on the only ground that in the instant circumstances it was not maintainable under the provision of Order IX, Rule 13 of the Code. Against the said order the Board (opposite party No. 1) filed Miscellaneous Appeal No. 58 of 1996, which was allowed by the learned Additional District Judge-IV, Bhagalpur by the impugned order dated 13-12-2000, holding that miscellaneous case was maintainable against a decree passed under Order VIII, Rule 10 of the Code.