SM LALI BAI Vs. RAMNIKLAL DEVJI GHELABHAI PARMAR

JUDGEMENT

(1.) This application by defendant No. 3 is directed against the order of the learned Subordinate Judge at Dhanbad dated the 21st of May, 1956, directing the petitioner to vacate the house in which she was living. The facts giving rise to the application, stated shortly, are these. There were three brothers, Devji, Damji and Lakhamshi. Devji and Damji are dead. Lakhamshi is defendant No. 1. His three sons and his wife are plaintiffs. The son and the widow of Damji are defendants 2 and 3 respectively. Similarly, the son and the widow of Devji are defendants 4 and 5 respectively. The plaintiffs instituted a suit for partition of their 4/15th share in certain collieries including buildings appertaining thereto against the defendants. On the 15th of December, 1950, a compromise was arrived at between the plaintiffs and defendant No. 1 on the one side and defendant No. 2 on the other. Later on, this compromise was challenged by the plaintiffs as a result of which the court refused to record the same. An appeal preferred by defendants 2 and 3 against the order refusing to record the compromise filed in this Court failad and the matter is pending before the Supreme Court. In the meantime on the the Supreme Court. In the meantime on the 23rd of November, 1955, a preliminary decree was passed in the partition suit against which defendants 2 and 3 have filed a first appeal in this court, which is numbered as F.A. 148 of 1956. This appeal is pending. On the 25th of January, 1956, an application was made for taking possession of a certain bungalow from defendant No. 3. The learned Subordinate Judge, Sri K.K. Bose, rejected that application holding that defendant No. 3 being equally a coparcener there could be no justification for dislodging her from the bungalow in question before partition by metes and bounds. Later on the 7th of March, 1956, again another application was made by the plaintiffs for the same relief, namely, for directing defendant No. 3 to vacate the said bungalow. On the 9th of March, 1956 the same Subordinate Judge, namely, Sri K.K. Bose, without taking notice of his previous order refusing the same prayer made by the plaintiffs passed an order directing defendant No. 3 to vacate the said bungalow. It has been said here on affidavit that this order was passed without hearing the petitioner. This statement has not been controverted by the plaintiffs in their counter affidavit which they have filed. On the 16th of April, 1956, the petitioner put in a petition for recalling the above order. That application was rejected on the 21st of May, 1956. While rejecting that application the Subordinate Judge Sri K.K. Bose directed that if defendant No. 3 did not vacate the bungalow, appropriate measures for delivering possession through police will have to be taken. The petitioner has, therefore, come up to this Court in revision against the order of the Court below directing her to vacate possession of the bungalow.

(2.) It may be mentioned here that in the suit even before the passing of the preliminary decree defendant No. 2 was appointed receiver and on subsequent applications being made by the plaintiffs they were authorised by the court to supervise the work and check the accounts of the receiver. It may also be mentioned that some time in April, 1956, defendants 2 and 3 jointly filed an application - in the Supreme Court in Civil Miscellaneous Petition No. 479 of 1956 for stay under Order 45, Rules 1 and 5 of the Supreme Court Rules. In that application they also stated that the court had ordered defendant No. 3 to vacate the residential house and that it was necessary that status quo should be maintained till the decision of the appeal. In the relief portion, however, they did not claim any relief with regard to this matter. The application filed by them in the Supreme Court is not on the record. But a copy of the same which was served on the plaintiffs has been produced before us. The prayers that were made by defendants 2 and 3 as appears from that application are as follows:

(3.) Mr. Ghose appearing for the petitioner has contended that the final decree not having been passed in the suit, the court had no jurisdiction to direct a co-sharer in possession of a house to vacate that house and to give possession of the same to another co-sharer. He has also submitted that the court having originally refused to grant the prayer of the plaintiffs for a direction to vacate the house acted illegally and with material irregularity in the exercise of its jurisdiction in passing a contrary order directing her to vacate the house without having heard her. The contentions appear to be well-founded. As already stated, on the 25th of January, 1956, the learned Subordinate Judge, after hearing all the parties concerned, passed an order in presence of the petitioner that she could not be dislodged from the bungalow in question until the partition by metes and bounds. From the subsequent order of the same Subordinate Judge on the 9th of March, 1956, it does not appear that any fresh material was placed before him for taking a different view of the matter; nor does it appear from his order that he was apprised of his previous order refusing the prayer for vacating the house. As the uncontroverted statement of the petitioner stands, the court did not even hear her on this matter when it passed a different order against her. In my opinion, the procedure adopted by the learned Subordinate Judge is unknown to law. If he wanted to revise his previous order, he should have given a hearing to her and should have stated in the order sheet why he thought fit to take a different view of the matter. The order passed by the learned Subordinate Judge on the 9th of March, 1956, was vitiated by irregularity and illegality in the exercise of his jurisdiction.