IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.449 of 2009 Badam Devi wife of Sri Mahabir Yadav resident of Village Bhalua, PO and PS Sangrampur, District Munger Versus 1. Naresh Prasad Chaturvedy son of Sri Mohan Prasad 2. Smt. Indu Chaturvedi wife of Naresh Prasaad Chaturvedi Both residents of village and PO Sangrampur, PS Sangrampur, District Munger …Plaintiff –Opposite 1st Party Appellant – Opp. 1st Party 3. Mahabir Yadav son of Budha Yadav resident of village Bhalua, PO Sangrampur, PS Sangrampur, District Munger …. Defendant Opp. 2nd Party Respondent 2nd Party – Opp.2nd Party 4. Neelam Devi wife of Upendar Yadar 5. Dimpal Yadav 6. Sangita Kumari 7. Jhumpar Kumari 8. All minor sons and daughters of late Upender Yadav under the guardianship of their mother Neelam Devi All residents of Village –Sangrampur, PO Sangrampur, PS Sangrampur, District Munger … Defendants – Opp. 2nd Party – Respondents 3rd Party ……. Opposite 3rd Party 9. Subila Devi wife of late Girdhari Das 10. Ranjit Das 11. Manju Devi All minor sons of late Girdhari Das under the guardianship of their mother Subila Devi Residents of Village Sangrampur, PO Sangrampur, PS Sangrampur, District Munger ..Defendant –Opp. 2nd party .. Respondent IVth party … Opposite IVth Party 12. Arun Kumar Bhagat son of Kedar Bhagat resident of village –Sangrampur, Tola Kusmar, PO Sangrampur, PS Sangrampur, District Munger 13. Ganesh Ravi Das son of late Bhadu Das, resident of village Vilashpur, PO Khapra, PS Sangrampur, district Munger 14. Santosh Kumar son of late Mahendar Prasad Yadav, resident of village Machchhlidih, PO Hathianak, PS Asharganj, Tarapur,District Munger …..Defendant -3rd Party – Opp. IVth Party Respondents Vth Party …………………… Opposite Parties ----------- 2 03- 22/11/2011 Heard Mr. T N Maitin for the petitioner, and Mr. S A Ahmed for opposite party nos. 1 and 2. The defendant is the petitioner in this application under section 115 of the Code of Civil Procedure, and is aggrieved by the judgment and order dated 16.1.2009, passed by the learned Additional District Judge –cum-Fast Track Court, Munger, in Misc. Appeal no.2 of 2006, whereby the appeal preferred by the plaintiffs has been allowed. The order of the learned trial court recalling the ex-parte judgment and decree whereby the suit was disposed of, has been set aside. 2. We have perused the materials on record and considered the submissions of the learned counsel for the parties. The plaintiffs (opposite party nos. 1 and 2 herein) had instituted Title Suit no.38 of 1994 which had been decreed by an ex –parte judgment. The petitioner herein ( a defendant) filed a misc. case bearing Misc. Case no.06 of 2002, which was allowed by order dated 20.1.2006, ex-parte judgment and decree was set aside for fresh hearing and disposal of the suit. Aggrieved by the same, the plaintiffs preferred the aforesaid Misc. Appeal no.2 of 2006, which has been allowed by the impugned judgment, the said order dt. 20.1.2006 of the learned trial court has been set aside, and it has been held that there was no legal justification to recall the ex-parte judgment and decree. The learned trial court has held that the learned Munsif has erred in holding that defendant no.2 had no knowledge of Title Suit no.38 of 1994. The correct position is that he had full knowledge of the suit and intentionally did not appear in the suit. He has further held that the learned Munsif ignored the bar of limitation in filing the misc. case. We entirely agree with the 3 reasoning assigned by the learned Additional District Judge, and has rightly set aside the order dt. 20.1.2006. 3. Relying on the provisions of Order 43, rule 1(b) of the Code of Civil Procedure, learned counsel for the petitioner submits that the appeal before the learned District Judge was not competent, and instead a civil revision application was maintainable. We do not wish to go into the question whether or not the appeal was maintainable. We may usefully refere to the judgment of the Supreme Court in Mohd. Swalleh v. Third Addl. District Judge [(1988) 1 SCC 40]. That was a case where final orders had been passed under the U.P. Rent Control Act. The aggrieved party preferred appeal before the District Judge, no objection was raised about the maintainability of the appeal, and the same was disposed of on merits. The aggrieved person preferred writ petition before the Allahabad High Court, wherein it was canvassed on behalf of the petitioner that no appeal at all is available under the Act and, therefore, the District Judge could not have entertained the appeal. While upholding the contention that no provision for appeal is available under the Act and the appeal before the District Judge was incompetent, the High Court observed that it entirely agreed with the order of the learned District Judge on merits and, therefore, adopted the same to be that of the High Court in exercise of its prerogative writ jurisdiction. The Supreme Court on appeal agreed with the order of the Allahabad High Court. I had the occasion to apply the same principle of law while sitting singly in my judgment dated 31.7.2002, passed in .CWJC No. 7779 of 2002, reported in 2002(4) PLJR 309 (Md. Sabir Hussain v. State of Bihar). 4 4. Applying the principle of law to the facts and circumstances of the present case and conceding for the sake of argument that the appeal was not competent, we agree with the reasoning assigned by the learned District Judge, and equally agree with the conclusion of the appeal. We, therefore, adopt the same as the order of this Court. 5. I am in this regard reminded of the following portion from the book by Fali S. Nariman, entitled India’s legal system: Can it be saved”, is also relevant in the present context: “More than one hundred years ago, a law member in the Government of India (Hobhouse) recorded in a minute dated 5 September 1872 (on the Bill leading to the Privy Council Appeal Act,1874) the following observations: In considering what limit should be assigned to the power of appealing, our leading maxim is, that it is the interest of the commonwealth to have and end of law suits. No man has a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wishes. The State’s duty is discharged when it has provided such a reasonable amount of attention and skill and honesty as will satisfy reasonable men that their causes have been decided, erroneously or otherwise, on the merits, and according to the best a ability of the judge, and so will prevent them from feeling that resentment of sheer injustice which drives people to take the law into their hands and to wage private war. Upon this principle all laws place some limits to litigation. And so have we placed limits to the power of appealing. Pithily put, and elegantly phrased. The portion about no man having a right to unlimited draughts on the time and money of the public in order to get his private affairs settled as he wished was quoted by Justice Gajendragadkar (who later became Chief Justice of India) in one of the early reports of the Law Commission of India, but despite what was so wisely said by Mr. Hobhouse and again by Chief Justice Gajendrgadkar, our laws continue to provide(by way of appeals, reviews and revisions) unlimited 5 draughts on the time and money of the public in order to get private affairs ultimately settled. For instance, we have now abolished second appeals, and yet lawyers go on arguing endlessly about the maintainability of intra-court appeals under special laws.” 6. It is difficult to set aside the impugned order also in view of growing pendency in courts in India. I am reminded of the conclusion arrived at by Mr. Bibek Debroy in his book entitled “In the Dock: Absurdities of Indian Law‟, that the pending litigations in this country without any addition thereto, will take 324 years for disposal. These observations were made more than two decades ago, and the situation has further deteriorated. One Judge of the Andhra Pradesh High Court in one of his speeches recently has made observations that it will now take 350 years or so to dispose of the pending cases. 7. This civil revision application is accordingly dismissed. mrl ( S K Katriar, J. )