IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.2128 of 2007 Bhuneshwar Prasad Sinha, Son of late Bankey Bihari Lal, R/o Mohalla- Langartoli, P.O. & P.S.- Kadamkuan, District- Patna- ------Plaintiff-Opposite Party—Petitioner. Versus Sujit Kumar Mishra, Son of Late Shishir Kumar Mishra, R/o Mohalla- Langartoli Gali, P.S.-Kadamkuan, District-Patna, and 20/A, Awadh Apartment, Mahatmagandhi Nagar, Kankarbagh, Patna, residing at Sitaram Complex, Congress Maidan, New Area Kadamkuan, P.O. & P.S.-Kadamkuan, District- Patna. ------------------------Defendant-Petitioner-Opposite Party. For Petitioner:-Mr. Ranjan Kumar Dubey Mrs. Sangeeta Sharma. Mr. Rakesh Sharma. For Opp.Party:-Udai Chandra Prasad. ----------- 11. 03.08.2011 Heard the learned counsel appearing on behalf of the petitioner and the learned counsel appearing on behalf of the opposite party. The civil revision application has been filed challenging the order dated 10.08.2007 by which the petition filed by the defendant/applicant under Order 9, Rule 13 and Under Section 151 of C.P.C. had been allowed. There is no dispute between the parties that the suit was for specific performance of contract with regard to the house. The plaintiff –petitioner had claimed in the suit the right 2 to get the sale deed executed with regard to the said house in his favour on the basis of an agreement for sale alleged to have been executed by the defendant who is admittedly the owner of the house. The said suit has ended in an ex parte decree against the sole defendant. The sole defendant had filed the petition under Order 9 Rule 13 and Under Section 151 C.P.C. which has been registered as Miscellaneous Case No. 22 of 2005 and by the impugned order the said Miscellaneous Case No.22 of 2005 has been allowed but the said order is also ex parte against the plaintiff who had been opposite party in the said miscellaneous case. The learned counsel appearing on behalf of the petitioner has submitted that the impugned order is illegal on many counts including the ground that the learned court below has wrongly allowed the miscellaneous case under Order 9, Rule 13 and Under Section 151 C.P.C. even though there had been valid service of summons on the opposite party. He has further contended that if he would have been given a chance to contest in the miscellaneous case he would have satisfied the Court below that there was valid service of summons on the defendants. On behalf of the petitioner order dated 3 18.02.2006(Annexure-1) to the revision application has been placed whereby the learned court has directed for consideration of the prayer for condonation of delay in filling the petition under Order 9 Rule 13 and Under Section 151 C.P.C. at the time of hearing when the evidence of the parties would have been before the Court. But it has been pointed out on behalf of the petitioner that the impugned order dated 10.08.2007 has been passed ignoring the said order and without condoning the delay in filing the miscellaneous case. The learned counsel appearing on behalf of the opposite party has supported the impugned order and has stated that the petitioner has deliberately avoided to appear in the miscellaneous case and ultimately the substituted service by publication in the newspaper was resorted to and as such the petitioner cannot be heard to say that he had no notice of the miscellaneous case. After hearing the parties and perusing the impugned order as well as the order dated 18.02.206(Annexure-1) it appears that the Miscellaneous Case No. 22 of 2005 was barred by limitation and there was an order to consider the prayer for condonation of delay at the time of the passing of the final order but the learned court below has failed to consider the said 4 prayer and pass the necessary order in the limitation matter. Further it also does not appear that the learned court below has recorded his satisfaction regarding the valid service of notice in the Miscellaneous Case No.22 of 2005 upon the opposite party who are the petitioner in this civil revision application. The ends of justice would be served if the petitioner is given an opportunity to appear and contest and be heard in the Miscellaneous Case No. 22 of 2005 before the learned Court comes to a decision on the prayer under Order 9, Rule 13 and Under Section 151 C.P.C. including the question of limitation. In the result, this civil revision application is allowed, and the impugned order dated 10.08.2007 is set aside and the matter is remanded to the court below for fresh decision in Miscellaneous Case No. 22 of 2005 after allowing the parties the opportunity of hearing and leading evidence. As the matter involves the dispute with regard to a residential house the learned court below is directed to expedite the hearing and conclude the proceeding preferably within six months. Nitesh ( V. Nath, J.)