IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.241 of 2005 Surjeet Singh @ Sita Babu, son of late Sardar Sant Singh, resident of Mohalla Mahisauri, Hospital Road District Jamui. .(Defendant no.2).(Respondent 2). ……… Petitioner. Versus 1. Sachidanand Srivastava, son of late Harinandan Prasad, resident of Mohalla Mahisauri, Hospital Road Jamui, District Jamui, ….(Plaintiff) (Appellant). 2. Surjit Singh 3. Nagendra Singh 4. Balbinda Singh All sons of late Sardar Kant Singh, residents of Mahisauri, Hospital Road, Jamui, District Jamui…(Defendants 1, 3 and 4 -Respondents 1. 3 and 4) ………. Opposite Parties. ----------- For the Petitioner : M/s Rajendra Narain, Anju Narain & Himanshu Kumar, Advocates. For the Opposite Parties : None. 06/ 10.11.2008 Heard learned counsel for the petitioner. 2. This civil revision has been filed by defendant no.2- respondent no.2-petitioner challenging order dated 07.01.2005, by which the learned Additional District Judge-Fast Track Court IV, Jamui rejected the cross objection of the petitioner filed in Eviction Appeal No. 2 of 2002. 3. The matter arises out of Eviction Suit No. 8 of 1993, which was filed by the sole plaintiff-appellant-opposite party no.1 for eviction of the defendants including the petitioner from the suit house, which is a double storeyed building bearing holding no.293 detailed in Schedule `A’ of the plaint over 3 ¾ decimals of land containing seven rooms on the - 2 - ground of personal necessity of the plaintiff. 4. The said suit was decreed in part on contest by judgment and decree dated 22.01.2002 passed by learned Munsif, Jamui, holding that there was relationship of landlord and tenant between the parties and the plaintiff had proved his personal necessity but with regard to partial eviction it was held that the suit premises being 70 ft. long and 35 ft. wide, the bona fide requirement of the plaintiff would be satisfied by partial eviction of the defendants from the southern portion of the suit premises measuring 12 ft. in width and 70 ft. in length. 5. It may be stated in this connection that the petitioner was defendant no.2 in the suit and was the full brother of defendant no.1 and both of them jointly contested the eviction suit. However, after the eviction suit was decreed in the year 2002 none of them filed any appeal against it nor challenged the findings with regard to relationship of landlord and tenant between the parties and the bona fide personal requirement of the plaintiff and hence the said parts of the judgment and decree attained finality. 6. However, with regard to the finding of the trial court relating to partial eviction, the plaintiff filed Eviction Appeal - 3 - No. 2 of 2002, which was allowed by the learned District and Sessions Judge, Jamui vide judgment and decree dated 23.02.2006 holding that the bona fide requirement of the plaintiff will not be satisfied by partial eviction as he requires the suit premises for residential purpose as well as for the purpose of opening two shops for his two sons. Against the said judgment and decree of the learned court of appeal below, defendant no.1 (opposite party no.2 of this revision) filed S.A. No. 110 of 2006, which has also been dismissed by this Court. 7. Even in the said eviction appeal filed by the plaintiff against the finding regarding partial eviction, notices were sent to the petitioner, who was respondent no.2 in the said appeal but he did not appear immediately after receipt of the notice and he appeared much later on 06.11.2004 only when the title appeal was ordered to be placed for ex parte hearing. However, the petitioner, who was respondent no. 2 in the said appeal, filed a petition on 06.11.2004 for recall of the said order regarding ex parte hearing, which was allowed by the learned court of appeal below on 11.11.2004 and respondent no.2 (petitioner) was permitted to contest the eviction appeal. Much thereafter on 27.12.2004, respondent no.2 (petitioner) filed a cross objection - 4 - in the said appeal challenging the findings of the trial court on the issues of relationship of landlord and tenant between the parties as well as of personal requirement of the plaintiff- appellant. 8. The learned court below in its impugned order dated 07.01.2005 fully considered that respondent no.2 (petitioner) was the full brother of respondent no.1 and both of them had jointly contested the suit, hence he had full knowledge of the proceeding of the case but he did not prefer any title appeal himself and even in the abovementioned eviction appeal of the plaintiff he appeared only after the order for ex parte hearing was passed in the eviction appeal, although notice thereof was served upon him much earlier. It was also found that after 11.11.2004 the argument of the appellant started in the said appeal and was concluded on 17.12.2004, whereafter on the prayer of the respondents record was posted for argument of the respondents on 21.12.2004 and it continued on several dates and only thereafter the cross objection was filed by respondent no.2 (petitioner) on 27.12.2004. 9. In the said circumstances, the learned court below was quite justified in arriving at the conclusion that the - 5 - defendants, who were tenants, were unnecessarily trying to delay the disposal of the appeal on one pretext or the other and in any view of the matter the cross objection filed by respondent no.2 (petitioner) on 27.12.2004 was miserably barred by limitation, for which no proper justification of delay could be shown by respondent no.2 (petitioner) although cross objection had to be filed within thirty days from the date of receipt of notice as per provision of Order XLI Rule 22 of the Code of Civil Procedure. 10. In the said circumstances, this Court does not find any illegality or jurisdictional error in the impugned order of the learned court below and, accordingly, this Civil Revision is dismissed. MPS/ ( S. N. Hussain, J. )