IN THE HIGH COURT OF JU&ICATURE AT BILASPUR CIVIL REVISION N0. /2009 PETITIONER: (Plaintiff) ....^^ ^•"•""~^\ .,-^^'^...- ^^.^•>^"" d..--^> Vs RESPONDENT: (befendants) $ s Angira Kumar Agarwal, son of Shri Bhagwan Dutt Agarwa!, aged about 71 years, Agriculturist— Village MohbhQtta, resident of Nevrabada, Gudhiyari, Tehsil <& District Raipur (CG) 1. Bharatlal Pateta, aged Qbout 55 years, son of Late Bahoran, resident of Village Sejbahar, Tehsil & Distn'ct Raipur (CG) 2. Ghanshyam Potela, aged about 32 years, son of not Bharotlal Patela, resident of Village Sejbahar, Tehsi! & District Raipui- (CG) 3. State of Chhattisgarh, through the Collector, Raipur, District Raipur. PETITION UNDER SECTION 115 OF THE CODE OFCIVIL PROCEDURE. 1908 ^ c f. HIGH COURT OF CHHATTKGARH AT BILASPUR C.R.No.84of2009 Petitioner (Plaintim Respondents/ (Defendantsl Angira KumarAgarwal Versus Bharatlal Patela & Others Civil Revision under Section 115 of the Code of Civil Procedure (SB: Hon'ble Mr. N.K. Aaarwal. J.l Present Shri Kshitiz Sharma, Advocate for the petitioner. Shri CR Sahu, Advocate for respondent No. 1 & 2. Shri GD Waswani, Govt. Advocate for State. ORALORDER (Passed on 9m day of March,2010) With the consent ofthe parties, the matter is heard finally at motion stage. The instant revision is directed against the order dated 07.08.2009 passed by the Additlonal 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. Shri Kshitiz Sharma, leamed 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 No. 1 & 2 would submit that the order of admission of the appeal by the court below, atthough ex parte, concludes the ;^^...<^ 8. 9. question of limitation which could not have been reopened by the court below. 1 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 & Sunderbai v. Collector, Balgaum3. 1 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 applican¥petitioneris free to fite reply of the said application for condonation of delay in filing the appeal pending before the court below and if such a reply is fited by the applicant then the trlal court is directed to pass final AIR 1985 PATNA 212 [A1R 1971 P.C. 179 'AIR 1918 P.C. 135 < £. ..,.- -"::- ^ Sahu order on the apptication 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. Sd/- N. K. Agarwal Judge \^SM0^