^. (^t?l<— IN THE HIGH COURT OF JUDICATURE AT BILASPUR WRIT PETITION N0. 2-&^:>-/2003 LALIT KUMAR SHUKLA SON OF GANGASAGAR SHUKLA AGE 41 / YEARS BUSINESSMAN, RESIDENT OF BAIJNATHPARA, RAIPUR (CG) vs. PETITIONER PLAINTIFF .1. CHAKRAPANI SHUKLA ALIAS MANA BHAIYA SON OF LATE JAGANATH SHUKLA, AGED 70 YEARS, BANKER AND BULLION MERCHANT, (SINCE DECEASED), SURVIVED BY LEGAL REPRESENTATIVES (I) SANTOSH KUMAR SHUKLA :^. (II) SUDHEER KUMAR SHUKLA ^. (III) VIDYABHUSHAN ^ . (IV) SHASffl BHUSHAN *>, ALL SONS OF S/0 LATE CHAKRAPANI SHUKLA RESIDENTS OF GANDffl GHOWK BALODA BAZAR, DISTRICT RAIPUR ^?-^'" i^^s^ .-^^•^' ^r.^5 ^' »v RESPONDENTS DEFENDANTS WMT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA "sy'^v,'-&, s? i' s ^y ^ '^^ \ HIGH COURT OF CHHATTISGARH. BILASPUR SINGLE BENCH : HON'BLE SHRt PRASHANT KUMAR MISHRA. J. W.P.No. 2852 of 2003 PETITIONER LalitKumarShukta. Versus RESPONDENTS Chakrapani Shukla and others. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA. Appearance: Shri B.P. Sharma and Shri Kshitij Sharma, counsel for the petltioner. Shri Sumesh Bajaj, counsel for the respondents. ORAL ORDER (10/02/2011) Following orat order of the Court was passed by Prashant Kumar Mishra. J. The petitjoner's/plaintiff's/applicant's of the Miscellaneous Judicial Case pending before the Court below^ has preferred this petitron under Articte 227 of the ConsUtution of India seeking quashment of the order Annexure P/6 passed by the Court below on 23/04/2003, rejecting his application under Section 5 of the Limitation Act and as a consequence his applicafon under Order 22 Rule 4 read with Rule 9 of C.P.C. has also been dismissed. (2) The plaintiff has preferred the suit for declaration and perpetual mandatory injunction sometimes in the year 1987 in relation to and contending that the property belongs to the joint family and is ancestral. The suit was dismissed for want of prosecution on 24/08/1995. The present M.C.C. before the Court below is pending for adjudicating the plaintiffs application under Order 9 Rule 9 of C.P.C. for restoration of suit. '•o. .<s!i (3) Defendant No.1 Chakrapani Shukla died sometimes in the year 1^2. Defendant No.2 Santosh Kumar Shukla S/o Chakrapani Shukta was already arrayed in the suit. After deatti of Chakrapani Shukla the petitioner impleaded his male legal heirs sometimes in the year 1992, itself wittiin the stipulated time, however, the female tegal heirs were not joined desplte objection raised bythe defendante. (4) The subject application under Order 22 Rule 4 read with Rule 9 of C.P.C. was submitted before the M.J.C. Court on '{910212002. An apptication under Section 5 of the Limitation Act for condonation of delay was also moved with a prayer that the delay in moving the application be condoned and the abatement be set-aside. It is this application which has been rejected by the Court below and as a consequence prayer made under Order 22 Rule 4 read witti Rule 9 has also been rsjected. (5) Learned counsel for respondents has raised preliminary objection that against an order rejecting the prayer for setBng aside abatement an appeal lies under Order 43 Rule 1 (k) of C.P.C. and thus the instant writ petition is not maintainable. (6) Leamed counsel for the petitioner would submit that since his applicaUon under Order 22 Rule 4 read with Rule 9 of C.P.C. was not considered on merits and it is only the prayer for condonation of delay which has been considered and application under Section 5 of Limitation Act has been rejected, this writ petition has been filed. (7) Having heard learned counsel for the parties, ttiis Court is of ttie opinion that even if the applicafion under Order 22 Rute 4 read with Rule 9 of C.P.C. has not been considered on merits, an appeal is maintainable under Order 43 Rute 1(k) of C.P.C. because in the operative part of the ^.^.is: ^ ^> impugned order the tearned Court below has specificalty menUoned that as a consequence of dismissal of application under SecUon 5 of Limitation Act, ttie applteation under Order 22 Rule 4 read with Rule 9 of C.P.C. is also dismissed. (8) Thus, the present writ petition is dismissed as not maintainable. Learned counsel for the petitioner woutd submit that the petitioner would like to prefer an appeal, however, because of pendency of the writ petition the appeal iteelf has become barred by limitation. The petitioner may prefer an appeal along with an application for condonation of delay and if such application is moved, the same shall be considered in accordance with law. (9) The certified copy of the impugned order be retumed to counsel for the peUtioner on supplying Xerox copy thereof. Prashant Kumar Mishra .Judge