RAM RAJ DAS CHELLA Vs. MAHANTH NARESH DAS

JUDGEMENT

(1.) HEARD .

(2.) A suit was filed by one Keshav Das claiming himself to be a Mahanth against four persons including the present petitioner. While the suit was pending the sole plaintiff -Mahanth Keshav Das died. The sole opposite party before this court i.e. Mahanth Naresh Das alleging that he was the Chela of Mahanth Keshav Das filed a substitution petition. It appears that in the meantime some villagers also filed an application in the said court for restraining all the defendants from alienating of Math property. This application was dismissed by the trial court. Subsequently, as evident from order dated 8.4.2003 passed in Misc. Case No. 3/01 arising out of T.S. No. 68/94 the trial court under an erroneous impression that the substitution petition itself had been dismissed and no further step was taken to substitute the sole plaintiff, ordered that the suit abated. This brought the present Misc. Case No. 3/ 2001 to be filed by the said Mahanth Naresh Das, who has sought substitution. On this fact being brought to the notice of the court, his substitution petition had neither been heard nor disposed of much less rejected and realising this mistake from the order - sheet itself the court had to restore the suit because unless the suit was restored the substitution petition could not have been dealt with. By the order dated 8.4. 2003 the trial court accordingly recalled the order of abatement noticing its mistake and restored the suit and posted substitution application for hearing. At this stage, the petitioner, who was defendant in the suit filed an application before the trial court that in the said Misc. Case i.e. Misc. Case No. 3/2001 before passing the order dated 8.2.2003 he was not heard and as such the said order ought to be recalled. This has been rejected by the trial court bringing the defendant -petitioner to this court.

(3.) FROM the facts narrated above it is clear that the trial court had committed an error of record which led to the order of abatement of the suit. The trial court found that it proceeds on the basis that the substitution petition, had been dismissed and no further step having been taken the suit was ordered to have been abated. This was found to be factual wrong as the substitution was still pending and it was a different petition by some villagers, which has been dismissed. This was a case of procedural review and not a substantive review.