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2017 DIGILAW 1408 (JHR)

Amiruddin Mian v. Saliman Khatoon

2017-08-09

RAJESH SHANKAR

body2017
ORDER : 1. No one appears on behalf of the respondents. 2. On perusal of order dated 18.12.2008 passed by the Joint Registrar (Judicial), it appears that service upon respondents has been accepted as valid since they have refused to accept the notice. 3. Heard the learned counsel for the petitioners. 4. The present writ petition has been tiled for quashing the order dated 2.2.2006 passed in Misc. Case No. 1 of 2004 by the learned Additional Judicial Commissioner-XX, Ranchi, whereby the prayer of the petitioners for restoration of Title Appeal No. 66 of 1994 was refused and Misc. Case No.1. of 2004 was dismissed for default as well as on the ground that no limitation petition under Section 5 of the Limitation Act was filed for condonation of delay of 65 days in filing the restoration petition i.e., Misc. Case No. 1 of 2004. The petitioner has also prayed for quashing the order dated 16.5.2006 passed in Misc. Case No.2 of 2006 by reasons of which learned Additional Judicial Commissioner-XX, Ranchi refused to recall the order dated 2.2.2006 passed in Misc. Case No. 1 of 2004. 5. The learned counsel for the petitioners submits that the petitioners filed Title Appeal No. 66 of 1994 in the Court of learned Judicial Commissioner, Ranchi against the judgment and decree dated 30.4.1994 passed in Title Suit Nos. 32 of 1987/2 of 1990. The said Title Appeal No. 66 of 1994 Was dismissed for non-prosecution on 22.4.2004. However, the fact of dismissal of the appeal came to the knowledge of the petitioners through the co-villagers on 23.7.2004. Thereafter, a restoration petition under Order XLI Rule 19 read with Section 151 C.P.C. was filed for restoring Title Appeal No. 66 of 1994 with a delay of 65 days. The said restoration petition was registered as Misc. Case No. 1 of 2004. The learned counsel for the petitioners further submits that a limitation petition under Section 5 of the Limitation Act for condoning the delay in filing of the said Misc. Case was also filed on 16.9.2004. However, the said fact could not be acknowledged by the learned court below as a result of which, the restoration petition was dismissed vide order dated 2.2.2006. The petitioners again filed Misc. Case No. 2 of 2006 praying inter alia for reconsideration of the restoration petition, which was earlier dismissed vide order dated 2.2.2006. Case was also filed on 16.9.2004. However, the said fact could not be acknowledged by the learned court below as a result of which, the restoration petition was dismissed vide order dated 2.2.2006. The petitioners again filed Misc. Case No. 2 of 2006 praying inter alia for reconsideration of the restoration petition, which was earlier dismissed vide order dated 2.2.2006. However, vide order dated 16.5.2006, the said application was also dismissed by the learned court below, refusing to recall the earlier order dated 2.2.2006. It is also submitted by the learned counsel for the petitioners that the learned court below failed to appreciate the fact that the limitation petition was already available on record which was filed for condoning the delay of 65 days in filing the restoration petition under Order XLI Rule 19 read with Section 151 C.P.C. and, therefore, the impugned orders dated 2.2.2006 and 16.5.2006 are liable to be set aside. 6. On perusal of order dated 2.2.2006 passed by the learned Additional Judicial Commissioner-XX, Ranchi, in Misc. Case No. 1 of 2004, it appears that on the said date also, no one appeared on behalf of the petitioners to press the restoration petition filed for restoring the Title Appeal No. 66 of 1994. The learned court below held inter alia that no limitation petition has been filed for condoning the delay in filing of application under Order XLI Rule 19 read with Section' 151 C.P.C. Accordingly, Misc. Case No. 1 of 2004 filed by the petitioners for restoring Title Appeal No. 66 of 1994 was dismissed. Subsequently, the petitioners filed Misc. Case No. 2 of 2006 for recalling the order dated 2.2.2006, which was also dismissed vide order dated 16.5.2006 by the Additional Judicial Commissioner-XX, Ranchi, finding no reason to recall the earlier order dated 2.2.2006. The main submission of the learned counsel for the petitioners is that the limitation petition was filed by the petitioners on 16.9.2004, however, the said fact was overlooked by the learned court below which resulted in dismissal of the restoration petition of the petitioners filed under Order XLI Rule 19 read with Section 151 C.P.C. for restoring the Title Appeal No. 66 of 1994. 7. 7. In my considered opinion, the said submission of the learned counsel for the petitioners cannot be appreciated in view of the fact that on 2.2.2006 also, no one appeared on behalf of the petitioners to press the restoration petition and the learned court below proceeded to consider the said application on merit and dismissed the same. Further, on perusal of the order dated 16.5.2006, it appears that the learned counsel for the petitioners did not bring this fact to the notice of the learned court below that a limitation petition was filed in Misc. Case No. 1 of 2004, though belatedly, on 16.9.2004. Since no submission was made on behalf of the petitioners with regard to the fact of filing of the limitation petition while arguing Misc. Case No. 2 of 2006, I do not see any infirmity in the impugned orders. 8. Consequently, I find no reason to interfere with the impugned orders dated 2.2.2006 and 16.5.2006 passed by the learned Additional Chief Judicial Commissioner-XX, Ranchi. 9. The present writ petition being devoid of merit is accordingly dismissed.