Patna High Court
Sheo Lagan And Anr. vs State Of Bihar on 3 November, 1961
Equivalent citations: AIR1962PAT219, AIR 1962 PATNA 219
ORDER Raj Kishore Prasad, J.
1. This application by the petitioners, who were respondents in F. A. 267 of 1959, is for restoration of their cross objection, which was dismissed for default.
2. The crucial question, for determination, is, whether the present application for restoration, which is the third one, is at all maintainable?
3. In order to resolve this issue, it is necessary to state the material facts having bearing on this question.
4. On 21-11-60 a peremptory order was passed to serve a copy of the petitioners' cross objection on the appellant within one week. The said peremptory order was not complied with. A copy of the cross objection, however, was served on the appellant on 2-12-60, but after expiry of the peremptory time and after the cross objection already stood dismissed, by virtue of the said peremptory order, on 30-11-60.
5. The first application for restoration of the said cross-objection was made on 16-1-61, which was numbered as M. J. C. 51 of 1961. This application was admitted, but, later on, it was dismissed for default for not filing talbana etc. within the peremptory time allowed, on 21-2-61.
6. The second application, which was made by the petitioners, was not for restoration of the cross-objection itself, but, for restoration of the restoration petition which stood dismissed for default on 21-2-61. This application was made on 24-5-61 and was registered and numbered as MJC 360 of 1961. This application was considered on merits and if was summarily rejected on merits on 26-4-61.
7. The present application, which is the third one, was made this time for restoration of the cross-objection itself. This application was made on 12-5-61 and numbered as MJC 462 of 1961. On the filing of this application, the office reported that the present application was not maintainable in view of the fact that the second application, which was for restoration of the first application, had been dismissed on merits. I, however, admitted the application and directed that the question of maintainability will be considered at the time of the hearing of the main application itself. In those circumstances, the question of maintainability of the present application has now come up for final determination.
8. To me it appears that when the first application for restoration--M. J. C. 51 of 1961--was dismissed for default, and, the application made subsequently for restoration of the said application, which was numbered as M. J. C. 360 of 1961, was rejected on merits after hearing the petitioners the result was that the order dismissing the application for restoration, filed on the first occasion, was affirmed and it became final. If, therefore, the present application is allowed, the result Will be to set aside the order dismissing summarily the application for restoration of the first restoration petition itself, and also to set aside the order by which the first application for restoration was dismissed for default. As long as the order dated 26-4-61 stands and is not vacated, I do not think that the present application is permissible in Jaw. Neither Mr. Mundrika Prasad Sinha, who appeared for the petitioners, nor, the learned Government Pleader, appearing for the State-opposite party, were able to call to my attention any decision either for or against the present application.
9. On the foregoing facts, therefore, my concluded opinion is, and I hold accordingly, that the present application is not maintainable, and as such, it cannot be entertained.
10. On my above decision regarding the maintainability of the application, I do not think, it is at all necessary for me to express any opinion on the merits of the case.
11. The result, therefore, is that the application fails and is dismissed as not maintainable. There will, however, be no order for costs of this application.