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2003 DIGILAW 686 (PAT)

Mostt. Sita Devi v. Raktoo Mahto

2003-07-09

P.K.DEB

body2003
Judgment 1. This revision petition has been preferred against the order dated 27.4.2002 passed in Title Appeal no. 141 of 1997 by the Addl. District Judge, XI, Patna, whereby and whereunder the appeal filed has been held to be barred by limitation and the petition filed for condonation of delay under Sections 5, 14 and 17 of the Indian Limitation Act read with Section 151 of the Code of Civil Procedure has been rejected. The said petition was filed on 6.10.2001. 2. There is a chequered history of the case. The respondents as plaintiffs filed the Title Suit no. 73 of 1982 challenging the Basgitparcha granted in favour of the defendant-appellants. There was also a writ petition filed on the same issue and the Anchal Adhikari was directed by the High Court to hold proper enquiry and then decide the question of Basgitparcha. It appears that Basgitparcha was granted on 27.10.1990. Originally the defendant-appellants contested the Title Suit no. 73 of 1982 and filed written statement etc. but then after the High Courts order when Basgitparcha was granted in favour of the defendant-appellants, he left the suit and did not contest. The suit was decreed ex parte on 20.11.1990. Against the ex parte decree the defendant-appellants had filed petition under Order 9, Rule 13 of the Code of Civil Procedure. The said petition was contested and ultimately the said petition was dismissed and such dismissal was maintained up to the Hon ble Apex Court. When the defendant-appellants lost in his endeavour on the petition under Order 9, rule 13 of the Code of Civil Procedure then filed the present appeal in the year 1997. Then also it appears that the there was no limitation petition filed and the appeal was filed before the District Judge and it was transferred to the court of AddI. District Judge and without consideration the limitation matter the appeal proceeded. As notice was issued to the repsondents, respondents appeared and challenged the admissibility of the appeal itself and then came up before this Court in civil revision. This court asked the appellate court to decide the admissibility of the appeal on the limitation matter being pressed from the side of the defendant-appellants. Then formal application for condoning the delay was filed in the year 2001 when by this time ten years have elapsed from the date of the decree of the suit. This court asked the appellate court to decide the admissibility of the appeal on the limitation matter being pressed from the side of the defendant-appellants. Then formal application for condoning the delay was filed in the year 2001 when by this time ten years have elapsed from the date of the decree of the suit. After considering objection and also the grounds taken in the limitation petition the same was rejected and the appeal was held to be barred by limitation by the impugned order. Hence, the present revision petition. 3. It is the admitted petition of law that against the ex parte decree the aggrieved party is entitled to take three courses, namely, (1) by filing a petition under Order 9, Rule 13 of the Code of Civil Procedure, (2) by filing appeal under Section 96(2) of the Code of Civil Procedure, 3) by filing a suit challenging the ex parte decree. Now in the present case, the appellant has chosen the first course i.e. a petition under Order 9, Rule 13 of the Code of Civil Procedure and he fought up to the Apex Court and then when lost he came to the first appellate court against the ex parte decree. Generally, in such a position when the case of the aggrieved party is strong he files paralIelly both petition under Order 9, Rule 13 of the Code of Civil Procedure and also appeal against the ex parte decree and if he gets relief in the petition under Order 9, Rule 13 of the Code of Civil Procedure he just withdraws the appeal. But the appellant in the present case has not done so. He has lost by elapse of time his right of appeal. It is true that regarding the First Appeal, it is practically a matter of right. The courts are lenient in respect of condoning delay. But here the delay is a wilful one on the face of it and the defendant-appellant cannot get any relief or sympathy from any court. Again it has been submitted by the learned counsel for the appellant that wrong submission was made before the trial court from the side of the plaintiff that Basgitparcha has also been cancelled but the fact remains that Basgitparcha was granted during the pendency of the suit in favour of the appellant. Again it has been submitted by the learned counsel for the appellant that wrong submission was made before the trial court from the side of the plaintiff that Basgitparcha has also been cancelled but the fact remains that Basgitparcha was granted during the pendency of the suit in favour of the appellant. When such an error is there then the order itself is a nullity and such nullity can be challenged at any forum. He has referred to 1988 (SC) 2031 (Atma Ram Mittal V/s. Ishwar Singh Purnia) para B holding that no person should be made to suffer at the cost of the fault on the part of the court and also he has referred to 1999 (Bombay) 235 (Sonerao Sadashivrad Patil and Anr. V/s. Godawaribai Laxmansingh Gahirawar & Ors.) regarding liberal approach and 1993 (2) S.C.C. 507 regarding in-validity of an order which can be challenged at any forum. A decree has been passed and it may be on some wrong submission but by that alone it cannot be said that such decree is without jurisdiction and non est in the eye of law rather such a decree is required to be corrected in the normal way by filing an appeal. But if the appeal has been filed beyond the period of limitation and hopelessly barred by limitation then the aggrieved party has got no relief. In the present case it appears that no wrong submission was made before the trial court because after the so called Basgitparcha was granted by order dated 27.10.1990 and only Parcha being issued on 10.1.1999 the same was challenged before this Court under writ jurisdiction being C.W.J.C. no. 7077 of 1990 and that Basgitparcha has been cancelled by this Court. 4. In that way, submission regarding the ex parte order being non est and without jurisdiction has got no force. When an appellant had taken/chosen a forum and fought out up the High Court then he is debarred from taking other forum from the very inception. If this sort of precedure is being allowed then there will be no end of litigation. 5. In that way, I do not find any force in this revision petition. Hence, the same is rejected. 6. If this sort of precedure is being allowed then there will be no end of litigation. 5. In that way, I do not find any force in this revision petition. Hence, the same is rejected. 6. It be mentioned that the rulings submitted by the learned counsel for the appellant i.e. 1954 (SC) 51 (Habis Mohammad V/s. State of Hyderabad) and AIR 2003 (Bombay) 52 (Khurshed Banoo V/s. Vasant Mallikarjun Manthalkar) have got no application or relevance in the facts and circumstances of the present case.