IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.434 of 2003 SHEIKH MD.HASHIM, son of late Abdul Shakur, resident of Mohalla- Chhatta Maszid, Bari Road, Gaya, P.S. Kotwali, District- Gaya…Appellant. Versus 1. ABRAR AHMAD @ SHEIKH ABRAR AHAMAD son of latge Abdul Shakur, resident of Mohalla-Bank Road, Dhami Tola, Gaya, P.S. Kotwali, District-Gaya. (i) Noor Jehan Begum (ii) Md. Ishrar (iii) Md. Irshad (iv) Ruhi (v) Nuzhat (vi) Ifat (vii) Heena Parween (viii) Mallika Bana. (2) Sheikh Nisar Ahmad alias Md. Mustafa, son of late Abdul Shakur, resident of Mohalla- Rasaldart Nagar (Gwal Toli) P.O. and P.S. Ddorazndaf, District- Ranchi-2 (Jharkhand). (3) Sheikh Anwar Ahmad alias Md. Murtaza son of late Abdul Shakur, resident of Mohalla- Bari Road, Gaya, Chhatta Maszid, P.S. Kotwali, District- Gaya. …. ….. Respondents. ----------- 15. 17.2.2010 Heard learned counsel for the appellant and learned counsel for respondent No.1 (i) to (viii). The Misc. Appeal has come up at the stage of admission. However, learned counsels for the appellant and the respondents have been heard at length and with their consent the matter is being finally disposed of. The Misc. Appeal has been filed against the order dated 16.9.2003 passed by the Ist Additional District Judge, Gaya in Title Appeal No. 1/1992/ 68/1991, by which he has rejected the application filed by the appellant under Order 22 Rule 9 read with Section 151 C.P.C. and - 2 - a petition under Section 5 of the Limitation Act. The brief history of the case necessary for the disposal of the appeal is that Title Suit No. 173/1989 was filed for partition of the suit properties and a preliminary decree was passed therein on 18.9.1991. Against the same, Title Appeal No.1/92/ 68/91 was filed by the present appellant. On 13.10.1991 Respondent No.4, Abdul Shakur died. Thereafter on 10.3.1992 a petition was filed on behalf of the appellant for expunging his name from the records. On 5.9.1992, a petition was filed on behalf of the plaintiff- respondent No.1 stating that since all the heirs of the deceased respondent No.4 had not been brought on the record, the appeal had abated and on the same day,i.e., on 5.9.1992, the lower appellate Court passed an order holding that the appeal had abated. The appellant filed Misc. Appeal No.267 of 1992 before this Court and by order dated 17.11.1994 this Court held as follows: “Heard learned counsel appearing on behalf of the appellant. I find no merit in this appeal and is, accordingly, dismissed.” - 3 - Thereafter, the appellant filed Letters Patent Appeal No.2 of 1995, which was also dismissed on 2.5.1996. In the meantime, the plaintiff respondent No.1 applied for preparation of the final decree and the same was also prepared on 27.5.1995. Thereafter Execution Case No.22 of 1995 was filed. On 5.8.2003 the aforesaid petition was filed under Order 22 Rule 9 read with Section 151 C.P.C. with an application under Section 5 of the Limitation Act for condoning the delay and setting aside the abatement of Title Appeal No.1/1992 / 68/1991. On a consideration of the above- mentioned facts and circumstances, the learned Ist Additional District Judge,Gaya rejected the application and the limitation petition by the impugned order. Learned counsel for the appellant submits that the appellant in this matter has acted on the basis of the legal advice given by his counsel and thus the appellant ought not be penalized for wrong legal advice given by the counsel. It is submitted that Misc. Appeal filed against the order of abatement dated 5.9.1992 - 4 - was not maintainable, yet on wrong advice the same was filed in this Court and after rejection of the same, Letters Patent Appeal was filed and the same was also rejected. Since the Letters Patent Appeal against the order passed in a Misc. Appeal itself was not maintainable, hence, the order passed in appeal ought not to be treated as an order on merit of the appeal and thus the matter can be re-considered by this Court. It is further submitted by him that the litigant ought not to be allowed to suffer for the laches on the part of the counsel in not giving proper advice for pursuing the matter and for the said reason, this Court should interefere and set aside the abatement of the appeal. Learned counsel for the respondent No.1, on the other hand, submits that the order of the lower appellate Court ought not to be interfered with for the reason that the appellant even after dismissal of the Letters Patent Appeal did not take any step in the matter and after more than seven years of the said dismissal of the appeal, the appellant has chosen to file the present application before the lower appellate - 5 - Court which has rightly been rejected by the court below. It is further submitted that, as a matter of fact, the delay of 11 years since the order of abatement passed on 5.9.1992 in filing the application for setting aside the abatement has not been properly explained, particularly after the dismissal of the Letters Patent Appeal on 2.5.1996. On a consideration of the rival submissions, this Court is inclined to accept the submissions of learned counsel for respondent No.1 and finds no force in the submissions of learned counsel for the appellant. The appellant is not only guilty of pursuing the matter after a long delay, rather he has not approached this Court for appropriate remedy in the matter. Even the order in the earlier Misc. Appeal No.267 of 1992 was passed on the merit of the appeal and no attempt was made by the appellant to get the same rectified as an order on the ground that the appeal itself was not maintainable. In view of the aforesaid facts and circumstances as also delay and laches on the part of the appellant, the lower appellate - 6 - Court has rightly held that there was no sufficient ground to entertain the said petition to condone the delay. Thus, this Court does not find any reason to interfere with the said order dated 16.9.2003 and it is, accordingly, dismissed. VPS ( Ramesh Kumar Datta, J. )