Angira Kumar Agarwal vs Bharatlal Patela and Others

N.K. Agarwal, J.—With the consent of the parties, the matter is heard finally at motion stage.

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 and 2 u/s 5 of the Limitation Act has been allowed without hearing the applicant herein.

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.

Per contra, Shri CR Sahu, learned Counsel appearing for the respondent Nos. 1 and 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.

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

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.

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 and Sunderbai v. Collector, Balgaum3.

I am in respectful agreement with the view expressed by the High Court of Patna in the above referred case.

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.

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