O.P.GARG, J. - (1.) THIS Second Appeal, which is the proto -type of the earlier Second Appeal No. 1163 of 1998, has come to be filed again by the same appellants and against the same impugned order, dated 28 -7 -1998 passed by Sri Ramesh Chandra Singh, IXth Additional .District Judge, Varanasi in Civil Appeal No. 435 of 1977, Smt. Laxmi Devi Gupta v. State of U.P. and Ors. The earlier appeal No. 1163 of 1998 was dismissed by this Court as not main ­tainable. In the earlier Second Appeal No. 1163 of 1998, which was filed by the present appellants, a preliminary objection was taken on behalf of the contesting respondents that the Second Appeal is not maintainable without leave of the Court as the appellants were not parties either to Suit No. 169 of 1994 or to First Appeal No. 435 of 1997.
(2.) AFTER hearing the learned Counsel for the parties at some length, the appeal was dismissed on 8 -8 -1998 by this Court holding that it was not maintainable without leave of the Court as the appel ­lants were strangers to the suit as well as First Appeal. For the sake of clarity and better appreciation of the legal question involved in the present Second Appeal, which is virtually the extension of the ear ­lier appeal, which stands dismissed, it would be proper to extract relevant por ­tion of the judgment dated 8th August, 1998: ......The appellants cannot file the second appeal without the leave of this Court. Sri Verma Counsel for the appellants was repeated ­ly asked by this Court whether he is prepared to move a proper application for leave of this Court so that appropriate orders may be passed after hearing the other side also. Sri Verma maintained and reiterated that no application or prayer for leave to appeal is necessary to file the present second appeal. I am of the firm view that the appellants cannot make the observations made in the writ petition No. 10436 of 1998 which was dismissed as the basis to file this second appeal without the leave of this Court. Since the appellants were neither party, to the suit nor the first appeal, the 'present second appeal without the leave of this Court is not maintainable. For the reasons stated above, the second appeal is dismissed as it is not maintainable. From the above observations it would appear that the appellants were af ­forded an opportunity by this Court to file an application for leave of this Court but the learned Counsel for the appellants who was confident enough in his stand, did not apply for the leave of the Court. Now this Second Appeal has been filed with an application for leave of the Court. The filing of this second appeal has been vehemently opposed by the respon ­dents and it was urged that it is nothing but .a sheer abuse of process of Court on the part of the appellants. It was suggested that if the appellants were, in fact, aggrieved of the order dated 8 -8 -1998 passed in earlier •Second Appeal No. 1163 of 1998, the ap ­propriate remedy was to have approached the Hon'ble Supreme Court rather than taking this Court for a ride by filing the true replica of the earlier appeal, which stands dismissed as not maintainable.
(3.) HEARD Sri R.N. Singh, learned Counsel for the appellants and Dr. R.G. Padia, on behalf of the respondents at con ­siderable length.;