SITA DEVI Vs. RAKTOO MAHTO

JUDGEMENT

(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. 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.) 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.