AINUL HAQUE Vs. BIBI SALIMAN

JUDGEMENT

(1.) Instant petition has been filed for review of the judgment and order passed by this Court on 10/6/2024 in S.A. No.59 of 2009 whereby and whereunder the appeal preferred by the defendants, was allowed setting aside the judgment and decree passed by the Courts below in favour of plaintiffs/respondents/review petitioners.

(2.) Learned counsel on behalf petitioners submits that conducting counsel, Mr. Manoj Kumar Sinha had died during pendency of the appeal and therefore, no one appeared on his behalf and consequently, the appeal was disposed of ex-parte. It is further submitted that respondent no.2-Safidan Khatoon had also died during pendency of the appeal she was not substituted and consequently judgment had been delivered against dead person and will be NON EST in view of the ratio laid down by the Hon'ble Supreme Court in the case of Kishun @ Ram Kishun (Dead) through LRs. Vs. Bihari (Dead) by LRs., (2005) 6 SCC 300. It is also argued that Barhan Mian was admittedly the owner of the property, whereas sale deed was executed by his son Abdul Rahman who had no right to execute the sale deed during the life time of his father in view of Mohammedan Law.

(3.) Having considered the submissions advanced on behalf of review petitioner, it is evident that the suit was filed on 21/2/2002 and the Title Appeal was disposed of on 12/1/2009 and thereafter, the Second Appeal was filed on 18/3/2009. The appeal was admitted on 22/2/2010 and thereafter, was adjourned for more than ten years in this Court. Before delivering the judgment on 10/6/2024, several adjournments were granted and no one appeared on behalf of respondents and consequently, considering it to be old case, the case was heard and disposed of by hearing the appeallant. Right of being heard comes with a rider that it is an opportunity and cannot be a ground to procrastinate hearing of a matter. It was incumbent on the part of the respondents that after death of the counsel, some other person should have been engaged, but no one was engaged and therefore, the proceedings before a Court cannot be kept endlessly pending for the hearing of the parties and the Court has to proceed as per the provisions of law. Either to find that this ground of non-getting opportunity, is not substantial for re-hearing the present Second Appeal. The second ground that has been raised is that respondent no.2- Safidan Khatoon had died during pendency of the appeal. It has however fairly been admitted that no informatory petition regarding this was filed under XXIII Rule 10A of the C.P.C. Unless the information is given, the appellant cannot be supposed to have taken step for substitution of the parties therefore, on this score also, the review is not tenable. By the last plea, the counsel has made an attempt to enter into the merit of the order passed by this Court, which is impermissible in view of Sec. 47 of the Civil Procedure Code. This is a case where a registered sale deed is being challenged by the son and his legal heirs and representatives on the ground that he had no right to execute the sale deed as per the Mohammedan Law, since the property was owned by his father at the time of execution of the sale deed. Even if this plea is accepted for the reason set out in the judgment, I do not think that the respondents are entitled to any relief. Civil Review Petition accordingly, stands rejected. Interlocutory Application, if any, is disposed of.