IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. ORDER S.B. CIVIL SECOND APPEAL NO.231/2006 Haribabu Soni Vs. Rajasthan Housing Board. 10.01.2008. HON'BLE MR. JUSTICE DALIP SINGH Shri Shailsh Prakash Sharma, for the appellant. Shri V.P. Mathur, for the respondent. Heard learned counsel for the parties. This second appeal under Section 100 C.P.C. has been preferred by the plaintiff appellant against the decision of of the learned lower appellate court dated 6.3.2006 by which the appeal has been dismissed as being barred by limitation. The notices were issued by this court vide order dated 29.1.200 to the respondent. In pursuance of the notice the respondents have put their appearance. The limited facts necessary for disposal of this second appeal are that the suit of the plaintiff came to be dismissed by the learned trial court vide judgment and decree dated 9.12.2002. The plaintiff instead of filing an appeal, filed a review petition before the learned trial court on 19.12.2002. The review petition came to be dismissed by the learned trial court vide its order darted 9.11.2005 and the appeal was filed before the learned lower appellate court filed by the plaintiff appellant against the judgment and decree dated 9.12.2002 on 19.12.2005. Learned lower appellate court has held the appeal to be barred by limitation by the impugned judgment dated 6.3.2006. Learned counsel for the appellant has submitted that in the instant case the plaintiff could not have preferred both the remedies of review and appeal in view of the provisions contained in order 47 rule 1 clause (a) C.P.C. It is contended that since the plaintiff was of the view that the judgment and decree dated 9.12.2002 passed by the learned trial court suffers from an error apparent on the face of the record and requires reconsideration in review by the learned trial court itself instead, of preferring the appeal the plaintiff chose to prefer a review petition before the learned trial court itself. It is submitted that the learned lower appellate court therefore committed an error in dismissing the appeal filed by the plaintiff on the ground of delay as the appellant could have preferred only one of the remedies available, i.e. Review or appeal and only after the dismissal of the review vide order dated 9.11.2005 the appeal was filed on 19.12.2005. The above contention of the learned counsel for the appellant and the facts are not disputed by the learned counsel appearing on behalf of the respondent that only one remedy was available to the aggrieved party in this case, the appellant herein. In view of the above, I am of the view that the learned trial court having been decided the review petition vide order dated 9.11.2005 the appeal filed before the learned lower appellate court against the judgment and decree dated 9.12.2002 cannot be said to be have filed with undue delay and the time spent in pursuing the remedy of review before the learned trial court from 9.12.2002 to 9.11.2005 was required to to be excluded and taking an over all perspective of the matter the learned lower appellate court ought to have proceeded to decide the appeal on merits rather on the technical ground of the appeal having been filed with delay and consequently barred by limitation. Accordingly I am inclined to allow this second appeal and remand the matter to the learned lower appellate court for decision afresh of the appeal filed against the judgment and decree dated 9.12.2002 in accordance with law. In the facts and circumstances, there shall be no order as to costs. (DALIP SINGH),J. Ramchandrkhatri,PS