Dal Raj Bhar vs Suchit Bhar

Jyoti Saran, J.—Heard Mr. Dhrub Narayan, learned Senior Counsel appearing on behalf of the petitioner. Though upon service, the respondents have appeared but none is present on their behalf today.

The writ petition has been filed for quashing the order dated 26.11.2008 passed by the 1st Additional Munsif, Buxar in T.S. No. 36 of 1994, whereunder the application filed by the petitioner for marking as exhibit the certified copy of the proceedings in Case No. 38/1981-82 pending before the Consolidation Officer, Etarhi, Buxar has been refused, inter alia, on grounds that an earlier application filed in this regard had been rejected by the court vide order dated 18.2.2008.

Learned Counsel for the petitioner, with reference to the chain of events, submits that indeed an application had been filed by the petitioner on 16.4.1999 for calling for the records of Consolidation Case No. 38/1981-82 pending before the Consolidation Officer, Itarhi, in the district of Buxar and the learned court below had allowed the application vide order passed on 30.9.1999 and directed the petitioner to file requisites.

Learned Counsel for the petitioner, relying upon the order sheet dated 1.10.1999 passed in the title suit, submits that the talbana and requisites had been deposited by the petitioner in compliance of the directions of the court below dated 30.9.1999. The petitioner has enclosed a copy of the order sheet dated 1.10.1999 in the supplementary affidavit filed on 10.2.2009.

As the records was summoned by the court below and not received, a second application was filed by the petitioner on 21.1.2008 requesting the court below to mark the certified copy of the records as exhibit and which application of the petitioner was rejected on 18.2.2008 on grounds of non-compliance of the directions issued by the court dated 30.9.1999 requiring the petitioner to deposit the requisites.

It is not in dispute that the petitioner filed a third application before the court below on 6.8.2008 explaining the entire sequence of events before the trial court including the fact that his earlier application dated 21.1.2008 had been rejected erroneously on 18.2.2008 despite filing of the requisites by the petitioner on 1.10.1999 in compliance of the directions dated 30.9.1999 of the trial court. The application of the petitioner having been rejected under the impugned order dated 26.11.2008, has given rise to the present writ application.

Learned Counsel for the petitioner submits that the only ground that has been assigned by the court below in rejecting the prayer of the petitioner is that his earlier application dated 21.1.2008 had been rejected on 18.2.2008 and no fresh ground has been assigned by the petitioner for reconsideration of his prayer. Learned Counsel for the petitioner submits that even while it was amply demonstrated before the trial court that the very basis for passing of the order dated 18.2.2008 was not correct as the petitioner had indeed deposited the requisites on 1.10.1999 in compliance of the order dated 30.9.1999 as is manifest from the order dated 1.10.1999 but the trial court has committed an error in passing the impugned or- der rejecting the application of the petitioner without having regard to this aspect of the matter.

I am in agreement with the submission of the Learned Counsel. The only reason assigned by the trial court is that as the earlier application of the petitioner dated 21.1.2008 was rejected by the trial court on 18.2.2008 and no fresh grounds had been shown by the petitioner for entertaining the prayer made in his application dated 6.8.2008, hence it did not merit consideration. The trial court while recording such opinion, has committed an error in not noticing that the order dated 18.2.2008 had been passed by the trial court on an incorrect premise that the directions dated 30.9.1999 was not complied by the petitioners and the requisites had not been deposited and which premise was not correct as is clearly visible from the order passed on 1.10.1999 in the suit. In that view of the matter the writ petition is allowed. The impugned order dated 26.11.2008 is set aside. The trial court is directed to consider the prayer made by the petitioner in his application dated 6.8.2008 on its own merits and dispose of the same without being prejudiced by the earlier order(s).