Brahmananda Ray since Dead His Legal Heirs Bhikari Ray & Others vs Ashamani Devi Since Dead Her legal Heirs Premananda Nayak And Others

Biswanath Rath,J

1.This is a writ petition involving a challenge to the order dated 14.03.1995 passed by the Commissioner, Consolidation, Bhubaneswar in Consolidation

Revision Case Nos.1942 and 1943 of 1984 moved at the instance of private opposite parties vide Annexure-16 to the writ petition.

Short recital of the case is that the private opposite parties filed objection case under Section 9(3) of the Odisha Consolidation of Holding and

Prevention of Fragmentation of Land Act, 1972 (hereinafter called herein as “OCH & PFL Actâ€) praying therein to record the property involved

therein in their name. The Consolidation Officer in disposal of the proceeding was pleased to record the disputed land in the name of the opposite

parties, the applicants therein. When the matter stood thus, petitioners herein filed two objection cases bearing Objection Case No.538 of 1983 and

Objection Case No.593 of 1983. The Assistant Consolidation Officer considered the objections under Section 15 of the OCH & PFL Act and directed

to record the same land in the name of the petitioners herein. Above orders were challenged by the opposite party no.1 in contest in Revision Case

No. 1942 before the Commissioner, Consolidation. The opposite party no.4 being petitioner filed another revision bearing Revision Case No.1943 of

1984. Both the matters were heard together and the Commissioner of Consolidation finally held that for the existence of order of Orissa Estate

Abolition Authority functioning as Tahasildar vide O.E.A. Misc. Case No.42 of 1969-70 remain valid and accordingly while holding that revision

petitioners i.e. opposite party no.1 and opposite party no.4 able to satisfy their occupancy right over the disputed land consequently directed for

recording the name of opposite party no.1 and opposite party no.4 involving the disputed land. This order is available at Annexure-16 and impugned

herein.

The case of the petitioners in their challenge to the impugned order at Annexure-16, as claimed in the writ petition and submitted during course of

hearing is that the husband of the opposite party no.1 Surendranath Naik was the ex-intermediary and he executed sale deed dated 21.08.1959 in

favour of his wife Ashamani Devi, the opposite party no.1. This sale deed had the recital that Surendranath acquired occupancy right over the

property which demand is claimed to have been considered and rejected by this High Court in the disposal of Second Appeal No.394 of 1950

appearing at Annexure-1. Accordingly, the petitioner claimed that sale deed indicates herein is a void one. Further claim of the petitioners is that

Makadami Village of Gadasitha contained Ac.37.44 decimals of Nijchas lands. The Makadami was abolished under provisions of O.E.A. Act on

11.04.1959 almost all the Nijchas lands were under the cultivating possession of Bhag Tenants, the petitioners and others. It is just after abolition of

ex-intermediary husband of opposite party no.1 as uncle of opposite party no.2 and father-in-law of opposite party no.4 transferred the disputed land

by R.S.D. dated 21.08.1959 measuring Ac.9.39 -2./3rd decimals of land to his wife. Subsequently, the opposite party no.1 also obtained ekapadia

noting therein entry in the name of his son-in-law, the opposite party no.4 measuring Ac.3.26 decimals of Nijchas lands. For the remaining land

Ac.24.78 decimals and other lands measuring Ac.0.94 decimals , the ex-intermediary filed O.E.A.No.609 of 1959-60, a proceeding under Section 7 of

O.E.A. Act, for fixation of fair rent on the ground that these lands were in khas dakhali. The O.E.A. Authority found out of Nijchas Khata No.10 only

Plot No.800, Ac.0.28 decimals, Plot No.280, Ac.0.13 decimals and Plot No.797/1193, Ac.0.22 decimals in all Ac.0.063 decimals to be his khas dakhali

and then while directing recording of above lands with him, the balance land Ac.24.15 decimals were held to be in cultivating possession of the

Bhagchasi as appearing at Annexure-3. It is further claimed that Bhagchasi including petitioner in all were 36 persons, who were paying the share of

the bhag produced to the ex-intermediary and used to obtain receipts. They all continued to pay bhag to State as the Landlord and used to obtain

receipt from Revenue Inspector vide Annexure-4 and by ex-intermediary vide Anenxure-5. It is claimed that though the bhagchasis filed application

under Section 4(2) and sub-Rule 1 of Rule 10 of O.L.R. Act to declare them as tenants under the State, but the said proceeding was kept pending and

the case of ex-intermediary was taken up for hearing. After the decision in O.E.A. Case No.609 of 1959-60, ex-intermediary filed O.E.A. Appeal

No.36 of 1966 before the A.D.M., Puri, which was dismissed vide Annexure-6. Ex-intermediary filed O.E.A. Case No.77 of 1968 and the Member,

Board of Revenue dismissed the said case on 26.4.1969, vide Anenxure-7. It is averred that in the meantime ex-intermediary Surendranath filed

O.J.C.No.673 of 1969 in this High Court which was dismissed on 08.08.1969, vide Annexure-9. It is further stated that only after the above

developments, ex-intermediary S.N.Naik got a deed of partition executed between opposite party no.1 and his nephew-opposite party nos.2 and 3 in

respect of land covered by the sale deed in favour of the opposite party no.1 and partitioned the lands between them. It is accordingly claimed that on

the basis of above invalid partition deed, opposite party nos.2 and 3 filed an application before the S.D.O., Puri and prayed to direct the Tahasildar to

get their names mutated and realize rent from them. It is at this stage, the Tahasildar on the other hand initiated a suo motu proceeding bearing

M.C.No.38 of 1981 and mutated the names of the applicants and instructed the Revenue Inspector to realize rent from them. Bhagchasis being

aggrieved by such action of the Tahasildar filed M.A.No.4 of 1982. The opposite parties instead of waiting for the outcome in the appeal rather filed

objection case and it is alleged that the Consolidation Officer ignoring all the above developments illegally and without jurisdiction passed order

directing recording of the name of opposite parties involving the disputed land in the land register. On an appeal, the S.D.O. passed order for

realization of rent from the opposite party nos.1 to 3, vide Annexure-10. Failing to get relief, opposite party nos.1 to 3 filed O.E.A. Revision No.80 of

1983 before the Member, Board of Revenue to set aside the order of the appellate authority dated 03.08.1983. The Board of Revenue disposed of the

matter observing that payment of rent by any party could not confer any right and there is no obstruction on the opposite parties also in paying the

rent. It is in the above premises, petitioners in different sets filed 19 O.L.R. Cases. In disposal of all these cases, there is decision in favour of

bhagchasis and bhagchasis were recognized as occupying rayati as appearing at Anenxrue-11. By filing separate application under Section 15 of the

OCH & PFL Act, petitioners got their names recorded in the land register vide Annexure-15 to the writ petition. This order being challenged by

opposite party nos.1 & 4, the Consolidation Commissioner, Bhubaneswar sets aside the order passed by the A.C.O., vide Annexure-16. The impugned

order at Annexure-16 is challenged claiming that the impugned order remain contrary to the development through O.J.C.No.673 of 1969 vide

Annexure-8, the order in O.J.C.No.639 of 1972 at Annexure-9 and the order passed in S.A.No.394 of 1950. It is further alleged that the impugned

order also contrary to the orders vide Annexures-6 and 11. It is in the above premises, petitioners in the first instance filed O.J.C.No.113 of 1987 in

this High Court and the same was dismissed for default on account of non-appearance of the counsel. As it appears from the further pleadings as

against the dismissal of the writ petition for default, petitioner has preferred M.J.C.No.82 of 1994 for restoration of the previous writ petition, which

was also dismissed and after about nine years of passing of the impugned order, vide Annexure-16, this writ petition has been instituted. On the issue

of writ petition being filed on delay and being second successive writ petition on the self same issue, learned counsel for the petitioners contended that

for technical disposal of first writ petition and also technical dismissal of M.J.C.No.82 of 1994, the filing of present writ petition cannot be held to be

suffering by delay and latches. But unfortunately no party is in position to bring copy of the order in M.J.C. No.82 of 1994 except petitioner stating in

paragraph-14-B that same has been dismissed for default again. In the process learned counsel for the petitioners also relied on a decision of

Hon’ble Apex Court in the case of Rafiq & another Vs. Municilal & another reported in A.I.R. 1981 S.C. 1400 and urged allowing the writ

petition in the above premises.

Advancing his submission, Sri Dayananda Mohapatra, learned counsel appearing for the contesting opposite parties raised three fold submissions,

i.e. in the 1st stage Sri Mohapatra for the dismissal of earlier writ petition and the M.J.C. petition against the very same impugned order, there is no

scope for initiating a 2nd writ petition. Further on the premises that nine years have already been passed by the time of institution of 2nd writ petition

on self same issue. Sri Mohapatra, learned counsel, also contended that the successive writ petition also hit by delay and latches and accordingly

should be dismissed on this account also. The 3rd limb of argument of Sri Mohapatra, learned counsel touching merit involving the matter is that the

order passed in the Second Appeal and previous writ petition in 1972 since contested on different aspects has nothing to do with this case. It is also

contended by Sri Mohapatra that Commissioner, Consolidation while deciding O.E.A. Case No.42 of 1969-70 considered the spot visit report of the

Tahasildar himself where he found physical possession of the contesting opposite parties herein over the disputed land and tenant under the State

Government and accordingly allowing the aforesaid case, the Tahasildar not only opened the Tenancy ledger favouring opposite parties but was also

pleased to reject the counter clam of the present petitioner vide O.L.R. Case Nos.414, 415, 416, 412, 411, 433, 452, 221, 419, 422 and 423 of 1965-66.

Sri Mohapatra taking this Court to the further development taken place in the meantime submitted that there has been carving of chaka since 1987 and

interference in the chaka is strictly prohibited under law. Further, taking this Court to the status quo order being passed by this Court on entertainment

of this writ petition, for the possession of the disputed land remaining in favour of the opposite parties for more than several decades, Sri Mohapatra,

learned counsel urged for rejection of the writ petition otherwise. While referring to the provision at Order 9, Rule 9 of the Code of Civil Procedure,

Section 141 of the Code of Civil Procedure and the decisions in the case of Puran Singh Vs. State of Punjab, AIR 1996 S.C. 109,2 M/s. Adarsh

Palace Private Limited and Another Vs. Somnanath Dwivedi & Others, 2009 (Supp-1) O.L.R. 90, 2D.Sangya Naik Vs. Department of

Telecom by its Head, I.L.R. 2005 KAR 1874, Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, (2010) 12 SCC 204 and in

the case of IV (2005) C.L.T. (DB) 70 in S.P.Garg Vs. L.I.C. & Other,s Sri Mohapatra, learned counsel attempted to justify his submission on the

dismissal of the writ petition on the ground of maintainability and limitation as well. Referring to different annexures referred to the writ petition, Sri

Mohapatra, learned counsel referring through the opposite parties written notes of submission particularly in paragraph-C therein attempted to

establish that many of the annexures has no relevancy to the case at hand and Sri Mohapatra accordingly contended that reference of these

annexures is made only to confuse the mind of the Court and is an misleading attempt. Sri Mohapatra, learned counsel for the contesting opposite

parties lastly taking this Court to the discussions of the Commissioner vide Annexure-16 submitted that there is clear finding arrived at by the

Commissioner not only that for there is no order illegal or perverse to the materials available on record, there is no scope for interference of this Court

in the impugned order. Sri Mohapatra, learned counsel for the contesting opposite parties, accordingly prayed for dismissal of the writ petition on both

count.

Sri Behera, learned Additional Standing Counsel for the State while supporting the stand taken by Sri Mohapatra and for clear finding of the

authority below submitted that there is no infirmity in the impugned order requiring interference in the same by this Court and thus made a request for

dismissal of the writ petition.

From the above, this Court finds deciding this writ petition, this Court is required to answer the following three issues:

A) - If the second writ petition is maintainable for already dismissal of the first writ and the M.J.C., on the self same issue?

B) - If this writ petition is hit by delay and latches:

C) - If the impugned order at Annexure-16 is bad and required interference?

From the pleadings of the parties and on perusal of materials placed by both the sides, petitioners’ claim so far it relates to this Court’s

judgment in the Second Appeal No.394 of 1950, this Court finds the suit involved therein involved a claim of title in between Surendra and Bamadeba,

whereas present litigation involves claim of right in between Surendra and present petitioners thus the judgment involving Second Appeal has nothing

to do with the case at hand. Similarly, the claim of the petitioners involving development through Annexure-3, this Court again finds dispute involved

therein relates to settlement of land under Khata No.12 already vested in Government except Ac.0.93 decimals which was already settled in the name

of contesting opposite parties, which land is not admittedly subject matter of the present dispute, thus also making the order vide Annexure-3 not

applicable to the case at hand thereby rendering development through Annexures-4 and 5 also not applicable to the case at hand. Similarly, Annexure-

6, decision since involving appeal as against orders vide Anenxures-3, 4 and 5 respectively, is also of no consequence. Similarly, order in Anenxure-8

since arising out of proceeding vide Anenxure-6 is also of no relevancy to the case at hand. Rent receipts vide Annexures-12, 13 and 14 are all

without prejudice to the claims of respective parties are also of no relevancy. It is at this stage of the matter, this Court on perusal of order at

Annexure-16 finds the Consolidation Commissioner vide paragraph-8 observed as follows:

“8. On 21.8.59 Surendranath Nayak by Registered Sale Deed No.4696 transferred Ac.9.39 2/3 to his wife Ashamani Devi who filed Misc. Case

No.42 of 69-70. Tahasildar declared her as tenant U/s. 8(1) of the O.E.A. Act, 1951 by his order dt.20.5.70. Tenant Ledger was opened in her

favour. O.L.R. Case No.415, 414, 416, 412, 411, 433, 452, 221, 419, 422 and 423 of 1965-66 filed by opposite parties to declare them as bhag tenants

under the petitioners were dropped as the O.Ps. who were the objectors before the Tahasildar failed to prove their case. The Tahasildar visited the

spot personally and enquired into the physical possession in presence of both the parties and observed that except plot no.798, 834, 809 and 327 other

plots were under the possession of the petitioner as tenant under the State Government in respect of Ac.9.39 2/3 appertaining to Khata No.10.

Against this order, the O.Ps. filed E.A. Misc. Appeal No. 23/70 before the A.D.M. who rejected it for want of jurisdiction. The O.Ps. filed

O.J.C.No.639/72 which the Hon’ble High Court disposed of on 17.4.74 with the observations that the order of the Tahasildar U/s. 8(1) of the

Orissa Estate Abolition Act was only a declarotory order which did not affect the right, title and interest of the petitioners before the High Court in the

disputed lands and their claim under O.L.R. Act must be decided by the Tahasildar before whom the O.L.R. Cases pending if they were maintainable

in law.â€​

It is necessary to mention here that petitioners preferred appeal as against the order in the O.E.A. M.C. No.42 of 1969-70 but lost in the appeal for

want of jurisdiction. Above observation of the Commissioner since came through a Estate Abolition proceeding remains binding on all concerned.

Further, on entertainment of the present writ petition, this Court vide order dated 1.6.1994 directed parties involved to maintain status quo in respect of

the possession over the disputed property till final adjudication of the writ petition. This Court therefore observes, for the possession of contesting

opposite parties over disputed land already held in a O.E.A. proceeding maintained over several decades cannot be disturbed for mere production of

rent receipts which cannot even create title in favour of the present petitioners. Further, the present writ petition being filed in the year 1994, involving

an impugned order being passed in the year 1985, the writ petition at hand also grossly barred by limitation. Thus the writ petition otherwise also is

barred by limitation.

This Court here wants to take note of the decision of this Court in disposed O.J.C. No.113 of 1987 and M.J.C.No.82 of 1994, which runs as

hereunder:

O.J.C. No.113 of 1987

“20.10.92. The case has been in the list yesterday and learned counsel for the petitioner prays for an adjournment of the case and the said prayer

was rejected. Notwithstanding our rejection for prayer for adjournment, when the case is called there was none to appear for the petitioner. We had

ourselves passed over the matter and taken up other case. The case was in the Sl.No.1 of the hearing list. Even then when the case is called, there is

none to appear nor any prayer has been made on behalf of the petitioner for adjournment.

In the circumstance, the writ application is accordingly dismissed for non-prosecution.â€​

M.J.C.No.82 of 1994

Note-sheet in between order No.12 and 13 in O.J.C.No.113 of 1987 clearly indicates that the M.J.C. No.82 of 1994 was ultimately dismissed(Heard.

Dismissed.)

For the technical objection by the learned counsel for the petitioner on the maintainability of successive writ petition involving same cause of action,

this Court finds in the first stage petitioners filed O.J.C.No.113 of 1987, which got dismissed by order of this Court dated 20.10.92 for non-prosecution.

As aggrieved by this order of the High Court, petitioners admittedly preferred M.J.C. No. 82 of 1994, which application, as appeared, again got

dismissed on merit. On their own admission, the petitioners did not challenge the above orders in higher forum and filed this writ petition involving

same cause of action. Taking into consideration the contentions of the petitioners that for no merit disposal of first writ petition, the second writ petition

is maintainable and the submission of Sri Mohapatra, learned counsel for the contesting opposite parties that not only the writ petition as against very

same impugned order got dismissed but a M.J.C. petition to restore the writ petition also got dismissed on merit, further there being no attempt to

reverse the order of this Court in M.J.C., thus making the subsequent writ petition not maintainable. This Court accordingly finds force in the

submission of Sri Mohapatra. Sri Mohapatra, learned counsel taking this Court to the provision at Order 9, Rule 9 of the Code of Civil Procedure,

Amended Section 141 of the Code of Civil procedure and some decisions attempted to justify his such claim. Learned State Counsel supported the

plea taken by Sri Mohapatra.

On scrutiny of judgments referred by the opposite parties, this Court finds:-

In the case of Puran Singh Vs. State of Punjab, reported in AIR 1996 S.C. 1092 ,in paragraphs-9 and 10 of the Hon’ble Supreme Court held as

follows:

“9. We have not been able to appreciate the anxiety on the part of the different courts in judgments referred to above to apply the provisions of the

Code to writ proceedings on the basis of Section 141 of the Code. When the Constitution has vested extraordinary power in the High Court under

Articles 226 and 227 to issue any order, writ or direction and the power of superintendence over all courts and tribunals throughout the territories in

relation to which such High Court is exercising jurisdiction, the procedure for exercising such power and jurisdiction have to be traced and found in

Articles 226 and 227 itself. No useful purpose will be served by limiting the power of the High Court by procedural provisions prescribed in the Code.

Of course, on many questions, the provisions and procedures prescribed under the Code can be taken up as guide while exercising the power, for

granting relief to persons, who have invoked the jurisdiction of the High Court. It need not be impressed that different provisions and procedures under

the Code are based on well-recognised principles for exercise of discretionary power, and they are reasonable and rational. But at the same time, it

cannot be disputed that many procedures prescribed in the said Code are responsible for delaying the delivery of justice and causing delay in securing

the remedy available to a person who pursues such remedies. The High Court should be left to adopt its own procedure for granting relief to the

persons concerned. The High Court is expected to adopt a procedure which can be held to be not only reasonable but also expeditious.

As such even if it is held that Order 22 of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the

appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after death of the respondent

survives. After the death of the respondent it is incumbent on the part of the petitioner or the appellant to substitute the heirs of such respondent within

a reasonable time. For purpose of holding as to what shall be a reasonable time, the High Court may take note of the period prescribed under Article

120 of the Limitation Act for substituting the heirs of the deceased defendant or the respondent. However, there is no question of automatic

abatement of the writ proceedings. Even if an application is filed beyond 90 days of the death of such respondent, the Court can take into

consideration the facts and circumstances of a particular case for purpose of condoning the delay in filing the application for substitution of the legal

representative. This power has to be exercised on well- known and settled principles in respect of exercise of discretionary power by the High Court.

If the High Court is satisfied that delay, if any, in substituting the heirs of the deceased respondent was not intentional, and sufficient cause has been

shown for not taking the steps earlier, the High Court can substitute the legal representative and proceed with the hearing of the writ petition or the

writ appeal, as the case may be. At the same time the High Court has to be conscious that after lapse of time a valuable right accrues to the legal

representative of the deceased respondent and he should not be compelled to contest a claim which due to the inaction of the petitioner or theappellant

has become final.â€​

In the case M/s. Adarsh Palace Private Limited and Another Vs. Somnanath Dwivedi & Others, reported in 2009 (Supp-1) O.L.R. 902, in

paragraph-8 this Court held as follows:

“However, this judgment is also prior to the amendment in the provisions of Section 141 C.P.C. More so, it does not provide that

the application under Order 11, Rule 1 would not be applicable in the proceedings other than suit.â€​

In the case D.Sangya Naik Vs. Department of Telecom by its Head, reported in I.L.R. 2005 KAR 1874, the High Court of Karnataka in paragraph-

10 held as follows:

“10. The argument was that the petitioner is innocent, he had entrusted his case to his counsel who has let him down and therefore he should not

be penalized. Though technically the writ petition is dismissed for non-prosecution on the date the case was set down for hearing, it cannot be said that

such an order is bad. When a party engages a counsel it is his duty to see that his counsel is present when the case is called for hearing. Order DC

Rule 9 provides for a remedy to the petitioner to file an application to recall the said order by showing sufficient cause for his absence. When a

legislature provides a remedy for getting the said order set aside, he has to follow the procedure prescribed under law. If he does not choose to follow

the said procedure and if chooses to follow the procedure which is not recognized in law, he cannot have any grievance. Under these circumstances,

the bar contained in Order IX Rule 9 CPC which is equally applicable to writ rules is absolute and no discretion is conferred on any Court to ignore the

aforesaid statutory provision and entertain the second writ petition challenging the order which was the subject matter of earlier proceedings which

came to be dismissed for non-prosecution.â€​

In the case Public Service Commission, Uttaranchal Vs. Mamta Bisht and Others, reported in (2010) 12 SCC 204, the Supreme Curt in paragraph-

9 held as follows:

“9. In case Respondent 1 wanted her selection against the reserved category vacancy, the last selected candidate in that category was a necessary

party and without impleading her, the writ petition could not have been entertained by the High Court in view of the law laid down by nearly a

Constitution Bench of this Court in Udit Narain Singh Malpaharia v. Board of Revenue, AIR 1963 SC 78,6 wherein the Court has explained the

distinction between necessary party, property party and proforma party and further held that if a person who is likely to suffer from the order of the

court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice.

More so, proviso to Order 1, Rule 9 of the Code of Civil Procedure, 1908 (hereinafter called “CPCâ€) provides that non-joinder of necessary party

be fatal. Undoubtedly, provisions of CPC are not applicable in writ jurisdiction by virtue of the provision of Section 141 CPC but the principles

enshrined therein are applicable (Vide Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 ,Babubhai Muljibhai Patel v.

Nandlal Khodidas Barot, AIR 1974 SC 2105, Sarguja Transport Service v. STAT, AIR 1987 SC 88.)

In the case of Birakishore Dash v. Kanaka Dash and others, reported in 96 (1990) C.L.T. 154, this High Court in paragraph-3 held as follows:

“3. An application for review lies only if the party discovers any new and important matter or evidence which was not within his knowledge or

could not be produced by him at the time the decree was passed even after exercise of due diligence, or on account of some mistake or error on the

face of the record or for any other sufficient reason. It is the consistent pronouncement of all judicial authorities that “any other sufficient reasonâ€

as found in Order 47, Rule 1 C.P.C. must have a meaning analogous to grounds of review mentioned earlier than it which would mean that a power of

review excludes from consideration grounds which were not decided by the former court as immaterial. A. I. R. 1922 P. C. 112, A. I. R. 1954 Patna

163 followed. A defendant seeking to avoid an ex parte decree can, without question, have recourse to three remedies, the first to file an application

under Order 9, Rule 13 C. P. C. to set aside it, second to file an appeal against the decree, and the third to file an application under Order 47, Rule 1

C.P. C.. A similar question was considered in A.I.R 1954 Madhya Bharat 3 (Chatar Das Guru Raghunathdas v. Keshavdas Guru Bikaridas)

wherein though the court held the absence of a counsel or party doesn’t enable the court to review an ex parte decree within the limited scope of

Order 47 Rile 1 C.P.C but held a case of failure of the court to issue notice of hearing to the defendant as clearly distinguishable and within the

purview of Order 47 Rule 1 as an error apparent on the face of the record. In AIR 1942 Oudh 63 (Bankey Behari Lal and another v. Abdul

Rahman and others) the question considered was the passing of some orders by the court in the chambers on some applications without the parties

being present. Such fact was held sufficient reason for the court to review the orders since it was an error apparent on the face of the record for the

Subordinate Judge to have decided the applications in the chambers in the absence of the parties. Similarly, in A.I.R. 1932 Calcutta 265 (Bhola Nath

Chatterjee v. Maharajadhiraj of Burdwan and others) where challenge was made to an order passed on review by the Munsif at the instance of

an auction purchaser reversing the order of setting aside a sale and confirmation of possession, it was held that though the grounds of review as were

relied upon by the Munsif were not available, yet the very fact that the sale was purported to be set aside on deposit of the decretal amount by the

petitioner in that case but no notice of such deposit had been given to the auction purchaser, the order passed setting aside the sale was in violation of

clause (2) of section 174-A of the Bengal Tenancy Act 1885 and was a justifiable around for review.â€​

All the above decisions finds support to the case of the contesting opposite parties.

This Court here also takes into account the claim of the learned counsel for the petitioner involving 1981 S.C. 1400 to support his case. After

going through the same, this Court for the difference in the facts involving the case therein and the case at hand finds this decision has no application

to the case at hand. On the other hand the decisions cited by the opposite parties clearly supports the case of opposite parties and accordingly hold the

present writ petition is not otherwise also maintainable in the eye of law.

For the findings of the Court on Issue Nos.1 and 2 that the writ petition in the 2nd instance involving same cause of action is not maintainable and

otherwise also grossly barred by limitation, for the observation of this Court in paragraph-7 herein above on Issue No.3, this Curt answers all the three

issues in favour of the contesting opposite parties.

The writ petition thus stands dismissed. Interim order dated 1.6.1994 stands vacated. In the circumstances, there is no order as to cost.