D. N. Patel - (1.) When the case is called out, counsel for the appellants is absent.
(2.) Counsel for the respondents submitted that the writ petition being W.P. (C) No. 3447 of 2013 was preferred against an interim order pleased in Title (Eviction) Suit No. 30 of 1987. By now, the Title (Eviction) Suit No. 30 of 1987 has been finally decided by Civil Judge (Sr. Division)-III, Dhanbad and, hence, this Letters Patent Appeal is not tenable at law. Moreover, counsel for the respondents has relied upon a decision rendered by Hon'ble Supreme Court reported in (2015) 9 SCC 1 : (AIR 2015 SC 3623) (paragraphs 19 and 30). On the basis of the aforesaid decision, it is submitted by the counsel for the respondents that the order passed by learned Civil Judge (Sr. Division)-III, Dhanbad in Title (Eviction) Suit No. 30 of 1987 dated 6-5-2013 was absolutely just, proper, equitable and in accordance with law. The original plaintiff expired and, hence, her brother and other legal heirs had preferred an application for joining as party-plaintiffs. This application was rightly allowed by the learned trial Court vide order dated 6-5-2013. This aspect of the matter has been properly appreciated by learned single Judge while dismissing the writ petition being W.P. (C) No. 3447 of 0213 vide order dated 6th August, 2014, while exercising powers under Art. 227 of the Constitution of India and, hence, in view of the aforesaid decision, this Letters Patent Appeal is not maintainable at law.
(3.) Having heard learned counsel for the respondents and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts and reasons:- (i) Original landlord Nagia Devi for the property in question filed a suit for eviction being Title (Eviction) Suit No. 30 of 1987 which was pending in the Court of Civil Judge (Sr. Division)-III, Dhanbad. (ii) Original plaintiff expired on 6th July, 2003 and, hence, the legal heirs, viz., her brother and other sisters, had preferred an application for substitution of the original plaintiff. This application was allowed by the learned trial Court vide order dated 6-5-2013 (Annexure 4 to this memo of Letters Patent Appeal). (iii) Being aggrieved and feeling dissatisfied with by the aforesaid order passed by Civil Judge (Sr. Division)-III, Dhanbad under O. XXII, R. 4 of the Code of Civil Procedure, writ petition being W.P. (C) No. 3447 of 2013 was preferred by the original defendants. (iv) This writ petition has been dismissed by the learned single Judge vide order dated 6th August, 2014 mainly on the ground that the applicants of an application under O. XXII, R. 4 of the Code of Civil Procedure, 1908, where the legal heirs of the original plaintiff. Hence, no error was found by the learned single Judge in the order passed by Civil Judge (Sr. Division)-III, Dhanbad in Title (Eviction) Suit No. 30 of 1987 dated 6-5-2013. (v) It appears that the original plaintiff has expired and her brother and two sisters had preferred an application to join as party-plaintiffs in Title (Eviction) Suit No. 30 of 1987. There is no infirmity in preferring such application if they are legal heirs, under O. XXII, Rule 4 of the Code of Civil Procedure, 1908. (vi) It further appears from the facts of the case that the trial Court has allowed such substitution on the ground that the applicants are brother and sisters of the original plaintiff. Hence, no error has been committed by the learned trial Court in allowing such application for substitution of the plaintiff vide order dated 6-5-2013. (vii) Even otherwise also, the Title (Eviction) Suit No. 30 of 1987 has been finally adjudicated upon by the Civil Judge (Sr. Division)-III, Dhanbad vide judgment and decree dated 21st June, 2017, photocopy whereof is tendered to this Court which is taken on record. (viii) Looking to the order passed by learned single Judge in W.P. (C) No. 3447 of 2013 dated 6-8-2014, no error has been committed by learned single Judge in dismissing the writ petition mainly on the ground that the legal heirs of the plaintiff can always be substituted as plaintiffs in case of death of the original plaintiff. (ix) It has been held by Hon'ble Supreme Court in the case of Jogendrasinhji Vijaysinghji v. State of Gujarat, 2015 AIR(SC) 3623 paragraphs 19 and 30, as under :- "19. The next aspect that has to be adverted to is under what situation a letters patent appeal is maintainable before a Division Bench. We repeat at the cost of repetition that we have referred to series of judgments of this Court which have drawn the distinction between Arts. 226 and 227 of the Constitution of India and the three-Judge Bench in Radhey Shyam has clearly stated that jurisdiction under Art. 227 is distinct from jurisdiction under Art. 226 of the Constitution and, therefore, a letters patent appeal or an intra court appeal in respect of an order passed by the learned single Judge dealing with an order arising out of a proceeding from a Civil Court would not lie before the Division Bench. Thus, the question next arises under what circumstances a letters patent appeal or an intra court appeal would be maintainable before the Division Bench. 30. From the aforesaid pronouncements, it is graphically clear that maintainability of a letters patent appeal would depend upon the pleadings in the writ petition, the nature and character of the order passed by the learned single Judge, the type of directions issued regard being had to the jurisdictional perspectives in the constitutional context. Barring the Civil Court, from which order as held by the three-Judge Bench in Radhey Shyam that a writ petition can lie only under Art. 227 of the Constitution, orders from Tribunals cannot always be regarded for all purposes to be under Art. 227 of the Constitution. Whether the learned single Judge has exercised the jurisdiction under Art. 226 or under Art. 227 or both, needless to emphasise, would depend upon various aspects that have been emphasised in the aforestated authorities of this Court. There can be orders passed by the learned single Judge which can be construed as an order under both the articles in a composite manner, for they can co-exist, coincide and imbricate. We reiterate it would depend upon the nature, contour and character of the order and it will be the obligation of the Division Bench hearing the latters patent appeal to discern and decide whether the order has been passed by the learned single Judge in exercise of jurisdiction under Art. 226 or 227 of the Constitution or both. The Division Bench would also be required to scrutinise whether the facts of the case justify the assertions made in the petition to invoke the jurisdiction under both the articles and the relief prayed on that foundation. Be it stated, one of the conclusions recorded by the High Court in the impugned judgment pertains to demand and payment of court-fees. We do not intend to comment on the same as that would depend upon the rules framed by the High Court. (x) In view of the aforesaid decision and looking to the order passed by learned single Judge in W.P. (C) No. 3447 of 2013 dated 6-8-2014, the same was filed under Art. 227 of the Constitution of India. Hence, the learned single Judge has exercised the power under Art. 227 of the Constitution of India and hence also, this Letters Patent Appeal is not tenable at law.";