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Angira Kumar Agarwal vs Bharatlal Patela & Others on 9 March, 2010

Chattisgarh High Court
Angira Kumar Agarwal vs Bharatlal Patela & Others on 9 March, 2010
       

  

  

 
 
           HIGH COURT OF CHATTISGARH AT BILASPUR       



                    C.R. No. 84 of 2009




                 Angira  Kumar Agarwal
                                ...Petitioners



                                   Versus


                 Bharatlal Patela & Others
                                        ...Respondents

Civil Revision under Section 115 of the Code of Civil
Procedure

! Shri Kshitiz Sharma, Advocate for the petitioner.

^ Shri CR Sahu, Advocate for respondent No. 1 & 2.

Shri GD Waswani, Govt. Advocate for State.



Honble Mr. N.K. Agarwal, J


       Dated:09/03/2010



:       Judgment



                        ORAL ORDER
            (Passed on 9th day of March, 2010)



1. With the consent of the parties, the matter is heard

finally at motion stage.

2. The instant revision is directed against the order

dated 07.08.2009 passed by the Additional District Judge,

Bhatapara, in Misc. Civil Appeal No. 04/09, whereby and

whereunder the application preferred by the respondent No.

1 & 2 under Section 5 of the Limitation Act has been

allowed without hearing the applicant herein.

3. Shri Kshitiz Sharma, learned counsel appearing for
the applicant would submit that the court below has acted
in excess of its jurisdiction in allowing the respondent’s
application without hearing the petitioner/applicant, and
therefore, the order deserves to be set aside.

4. Per contra, Shri CR Sahu, learned counsel appearing
for the respondent No. 1 & 2 would submit that the order
of admission of the appeal by the court below, although ex
parte, concludes the question of limitation which could
not have been reopened by the court below.

5. I have heard the counsel appearing for the parties
and perused the order impugned.

6. It cannot be denied that the opportunity of hearing
on an application for condonation of delay is a material
right available to the other party and normally the order
should have been passed by the trial court after hearing
both the parties.

7. The High Court of Patna in case of Forbesganj Jagdish
Mill Ltd. v. Kaloram1 has held in para 4 of its judgment
that to avoid such a right will amount to serious
violation of the principles of natural justice and
therefore such order passed without hearing the opposite
party must be deemed to be subject to the right of the
respondent in this regard. The High Court of Patna in
said case relied upon two judgments of Privy Council in
Krishnaswami Panikondar v. Ramasami Chettiar2 & Sunderbai
v. Collector, Balgaum3.

8. I am in respectful agreement with the view expressed

by the High Court of Patna in the above referred case.

9. Therefore, the order impugned passed by the trial
court without hearing the opposite party, must be deemed
to be subject to the right of the respondent in this
regard and the applicant/petitioner is free to file reply
of the said application for condonation of delay in filing
the appeal pending before the court below and if such a
reply is filed by the applicant then the trial court is
directed to pass final order on the application preferred
by the non-applicants on its own merits in accordance with
law.

10. With the above direction and observation, the
revision is disposed of. No order asto costs.

Judge

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