PATNA, India, April 23 -- Patna High Court issued the following judgment on March 23:

1. The present civil miscellaneous application has been preferred for issuance of writ in the nature of certiorari or other appropriate writ for setting aside the order dated 24.08.2017 passed by learned Civil Judge, Sr. Division, Samastipur in Title Suit No. 145 of 1997.

2. Heard learned counsel for both the parties.

3. Learned counsel for the petitioner submits that the petitioner has filed Title Suit No. 145 of 1997 in which apart from relief regarding declaration of his title and possession, he has also sought for that the decree passed in previous Title Suit No. 128 of 1989 on the basis of compromise between the parties, be declared as void ab initio, illegal and inoperative against the plaintiffs.

4. He further submits that in the aforesaid title suit, the plaintiff has completed his evidence and the matter is presently going on for evidence of defendant/respondent. Subsequently he came to know that he has chosen a wrong forum to file this suit because suit ought to have been filed before the same Court by which the decree was passed in previous Suit no. 128 of 1989 and not a regular suit. After coming to know this fact, plaintiff/petitioner filed a petition to convert the said Title Suit No. 145 of 1997 in miscellaneous suit so that the illegality in judgment and order passed in previous Title Suit No. 128 of 1989 under Order XXIII of the Code of Civil Procedure on the basis of compromise, be adjudicated, which has been rejected by the impugned order dated 24.08.2017.

5. Learned counsel appearing on behalf of the respondents submits that after much delay this petition has been filed which is not not maintainable. 6. To buttress his argument, learned counsel for the petitioner has placed reliance on the judgments rendered in Sushma Devi vs. Most. Sona Devi reported in 2013 (2) PLJR 109 and Smt. Prabhawati Sinha vs. Heera Rai reported in 2010 (1) PLJR 560.

6.1 Paragraph 21 of judgment passed in the case of Smt. Prabhawati Sinha vs. Heera Rai has been reiterated below:-

"21. I do not find any force in the submissions raised on behalf of the petitioner. Interest of justice cannot be held to be subservient to the hyper-technicalities. The petitioner has appeared in the case has filed written statement and participated in the suit also subsequently. It is also the fact that the procedure for disposal of the miscellaneous case would also be similar to that which has been prescribed in the Code for disposal of the suits. Therefore, in my opinion, if the suit is allowed to be converted into a miscellaneous case, then it will prejudice none of the parties. Thus, ex debito justitiae this Court thinks it proper that the plaintiffs opposite parties may be allowed to convert the suit into a miscellaneous case. This prayer of the opposite parties is allowed. They may be allowed by the trial court to convert the title suit concerned into a miscellaneous case within two months from the date of receipt or production of a copy of this order."

*Rest of the document can be viewed at: (https://patnahighcourt.gov.in/viewjudgment/NDQjMTc5NCMyMDE3IzEjTg==-iewg22lhH--am1--s=)

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