Raj Narayan Singh vs Om Prakash Singh and Others

Abhijit Sinha, J.—Heard the learned counsel for the appellant as also the learned counsel for Respondent No. 2. At the very initial stage a preliminary objection has been raised by the learned counsel for Respondent No. 2 that this Misc. Appeal is not maintainable since the very suit out of which this Misc. Appeal has arisen was dismissed for non- prosecution as far back as on 14.9.2006. In support of the submissions he has placed reliance on Annexure-B appended to the counter affidavit filed by him on 19.9.2008 after serving a copy thereof on the learned counsel for the appellant. The said order reveals that Partition Suit No. 305 of 1995 stands dismissed for non- prosecution as the parties have not filed hazri.

Assailing the submissions advanced by the learned counsel for the Respondent No. 2, the learned counsel for the appellant sought to submit that a restoration application for restoration of the aforesaid Title Suit has already been filed and orders are expected to come in April, 2009 and, therefore, this Court in the interest of justice should refrain from hearing this appeal under Order 41 Rule 11 C.P.C.

I, am unable to accede to the submission and requests made by the learned counsel for the appellant. Admittedly, by virtue of the Partition Suit having been dismissed, there is no suit pending in the court below in the eye of law and if there is no suit pending in the court below, this Misc. Appeal cannot be maintained because it seeks to impugn an order which had been passed in a suit which is not in existence at the present moment having been dismissed.

In the facts and the circumstances of the case, I see no apparent reason or justification in keeping this appeal pending any further. It is accordingly dismissed under Order 41 Rule 11 C.P.C. Before I part, I may observe that in the event of the Partition Suit in the court below being restored to its original file, the appellant herein, who happens to be the plaintiff in the suit, shall be at liberty to avail all remedies that may be available to him in event of such restoration.