Musammat Afreen Begum v. Smt Bela Devi

Court No. - 1 Case :- MATTERS UNDER ARTICLE 227 No. - 3954 of 2023 Petitioner :- Musammat Afreen Begum Respondent :- Smt Bela Devi Counsel for Petitioner :- Manish Singh Counsel for Respondent :- Ravish Chandra Srivastava,Vijay Kumar Ojha Hon'ble Jayant Banerji,J.

¶1Rejoinder affidavit filed today is taken on record.

¶2Heard Shri Manish Singh, learned counsel for the petitioner and Shri V.K. Ojha, learned counsel appearing for the respondent.

¶3This petition has been filed seeking the following reliefs:- "i) To quash the order dated 04.03.2023 passed by Civil Judge Senior Division Varanasi in Misc. Case No.87 of 2023 (Bela Devi Vs. Musammat Afreen Begum & others) Annexure No.5 to this petition.

ii) To direct the Civil Judge Senior Division Varanasi not to proceed with Misc. Case No.87 of 2023 (Bela Devi Vs. Musammat Afreen Begum & others) pending before Civil Judge Senior Division Varanasi.

iii) To issue any other, order or direction which this Hon'ble Court may deem fit and proper in the present case.

iv) To award the cost of the petition."

¶4The order under challenge is the one dated 04.03.2023 passed in Misc. Case No.87 of 2023 (Bela Devi vs. Musammat Afreen Begum & Ors.), which is an application filed under Order IX Rule 13 read with Section 151 CPC by the defendant no.2 in Original Suit No.694 of 2021 which suit was decreed pursuant to a judgment and order dated 18.04.2022 under Order XII Rule 6 CPC ex-parte against the defendant no.2. The order dated 04.03.2023 is quoted below :- "न्ययायलय ससिवविल जज सिसी०वडि० वियारयाणसिसी। जजे०ओ० ककोडि- यय०पसी० 2077 सिसी०एन०आर० नम्बर-यय०पसी०विसी०आर० 05-000308-2023्ቚ ककीणर वियाद सिसंख्यया:- 87 /2023 बजेलया दजेविसी ------- बनयाम ------ ममु० आफरसीन बजेगम विगगै० वदनयााሩक:- 04.03.2023 आज ्ቚयासररनसी दयारया ्ቚयाररनयाप्ቔ 4 ग मय शपरप्ቔ 5 ग अन्तगरत आदजेश 9 वनयम 13 वि धयारया 151 ससिवविल्ቚ वቅኌयया सिसंवहितया दयासखिल वकयया गयया। ्ቚककीणर वियाद कजे रूप मम दजर हिको। वविपकसीगण कको नकोवटिसि जयारसी हिको। ्ቚयारर पगैरविसी अन्दर 7 वदन करम। प्ቔयाविलसी वियास्तजे आपसत/वनस्तयारण वदनयााሩक 11.04.2023 कको पजेश हिको । ससिवविल जज (सिसी०वडि०), वियारयाणसिसी।"

¶5The sole contention of the learned counsel for the petitioner is that the application under Order IX Rule 13 CPC would not be maintainable in the facts and circumstances of the case, inasmuch as an alternative remedy of appeal, in view of the provisions of Order XLI Rule 4 CPC, would be available before the appellate court. In support of his contention, learned counsel for the petitioner has relied upon a judgment of the Calcutta High Court passed on an application under Order IX Rule 13 CPC bearing GA No.1494 of 2009 in Civil Suit No.145 of 1991 (Smt. Utpala Deb & Ors. vs. Smt. Sita Devi Lohia & Ors.).

¶6Learned counsel for the respondent has opposed the petition on the ground that the maintainability of the matter can be argued by the petitioner before the court that is in seisen of the application under Order IX Rule 13 CPC.

¶7A perusal of the judgment dated 18.04.2022 in Original Suit No.694 of 2021 reflects that it was passed ex-parte against the defendant no.2, the petitioner in the present case, and the suit was, accordingly, decreed. An application under Order IX Rule 13 read with Section 151 CPC dated 04.03.2021, which was registered as Misc. Case No.87 of 2023, was filed by the petitioner in which the order impugned order was passed.

¶8There is no merit in the submission of learned counsel for the petitioner. In case, the defendants seek to assail the proceeding under Order IX Rule 13 CPC, it is for them to raise the issues before the court concerned. The judgment of the Calcutta High Court, that is relied upon by the learned counsel for the petitioner, was passed on an application under Order IX Rule 13 CPC by the Court exercising ordinary original civil jurisdiction and not appellate or supervisory jurisdiction.

¶9Accordingly, no interference is called for and this petition is, therefore, dismissed. Order Date :- 16.11.2023 SK (Jayant Banerji, J.) High Court of Judicature at Allahabad