Angad Sharma Alias Angad Barhi Vs Anup Rajgaria

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2025:JHHC:27950 .

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IN THE HIGH COURT OF JHARKHAND AT RANCHI C.M.P. No. 557 of 2024

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Angad Sharma @ Angad Barhi, S/o Late Mahavir Sharma, R/o 77a, Shastrinagar, Near Mahabeer Mandir, PO- Giridih, PS- Giridih and District- Giridih.

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Raju Sharma @ Raju Barhi, S/o Late Mahavir Sharma, R/o 77a, Shastrinagar, Near Mahabeer Mandir, PO- Giridih, PS- Giridih and District- Giridih.

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Tulsi Sharma @ Tulsi Barhi, S/o Late Mahavir Sharma, R/o 77a, Shastrinagar, Near Mahabeer Mandir, PO- Giridih, PS- Giridih and District- Giridih.

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Ajay Sharma @ Ajay Barhi, S/o Late Mahavir Sharma, R/o 77a, Shastrinagar, Near Mahabeer Mandir, PO- Giridih, PS- Giridih and District- Giridih.

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.... .... …. Petitioners

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Versus

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Anup Rajgaria, S/o Late Ram Ratan Lal Rajgaria, R/o Mayers Compund Bharndiadih, PO, PS & District- Giridih.

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Ashok Rajgaria, S/o Late Ram Ratan Lal Rajgaria, R/o Mayers Compund Bharndiadih, PO, PS & District- Giridih.

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Asha Goyal, D/o Late Ram Ratan Lal Rajgaria, R/o Mayers Compund Bharndiadih, PO, PS & District- Giridih.

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Aruna Devi Chowkhani, D/o Late Ram Ratan Lal Rajgaria, R/o Mayers Compund Bharndiadih, PO, PS & District- Giridih.

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Santosh Singh, S/o not known, R/o Rajput Mohalla, PO, PS & DistrictGiridih.

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Ravi Shankar Singh, S/o Ram Lal Singh, R/o Sirsia, PO, PS & DistrictGiridih.

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Anil Verman, S/o Bhagwat Verman, R/o Sirsia, PO, PS & DistrictGiridih.

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.... .... .... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

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For the Petitioners : Mr. Onkar Nath Tiwari, Advocate For the Opp. Parties : Mr. Vimal Kirti Singh, Advocate Mr. Ujjal Choudhary, Advocate Mr. Raunak Sahay, Advocate Ms. Vandana Kumari, Advocate

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Order No.05 / Dated :11.09.2025

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Petitioners are the defendants and the instant civil miscellaneous petition has been filed to set aside the order dated 02.05.2024 passed in Civil Appeal No.11/2018 by which the delay in preferring appeal by the plaintiff has been condoned.

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Facts leading to the present case are not in dispute.

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Plaintiffs filed Title Suit No.44/2003 impleading the present petitioners as

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2025:JHHC:27950 .

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defendants which was dismissed on 08.04.2010 as being barred by res judicata under Section 11 of the CPC as well as under Order II Rule 2 of the CPC. The trial court held that the plaintiff had earlier filed Title Suit No.92/1991 for 96 decimals of land over the same Plot No.263, Mouza Mohanpur, Khata No.5, which was dismissed and the dismissal attained finality. Consequently, the present suit was barred by resjudicata as it was for similar relief and they were litigating under the same title.

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On 21.04.2010 , plaintiff preferred civil review against the judgment of dismissal in Title Suit No.44/2003 which has been dismissed vide order dated 03.11.2017 . 5. After dismissal of the civil review, the plaintiffs preferred appeal being Title Appeal No.11/.2018 on 16.02.2018. 6. Learned first appellate court condoned the delay, against which the instant petition has been filed.

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It is contended by the learned counsel on behalf of the petitioners/defendants that there was a delay of 07 years 10 months and 08 days in preferring the appeal., whereas it is contended by the learned counsel appearing on behalf of the plaintiffs/opposite parties that the real delay was only for 60 days as the matter was sub-judice in civil review.

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It is not in dispute that the civil review was dismissed on 03.11.2017 and the appeal was filed on 16.02.2018. 9. Learned first appellate court allowed the limitation petition filed under Section 5 of the Limitation Act in view of Section 14 of the Limitation Act and condoned the delay by holding that the pendency of review cannot be counted in view of Section 14 of the Limitation Act.

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In order to appreciate the argument advanced on behalf of the petitioner that Section 14 of the Limitation Act will have no application in the present case, it will be desirable to extract Section 14 of the Limitation Act which reads as under: -

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14. Exclusion of time of proceeding bona fide in court without jurisdiction. —(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or

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2025:JHHC:27950 .

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revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.—For the purposes of this section,— (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;

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(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

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By referring to the above definition, it is argued, and rightly so, that Section 14 of the Limitation Act will apply in cases where it is prosecuted in good faith in a court which from defect of jurisdiction or other cause of like nature, is unable to entertain it. Here, in the present case, there was no jurisdictional error. Learned counsel on behalf of the opposite party also does not refute the proposition of law canvassed with regard to Section 14 of the Limitation Act is concerned.

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Thus, it is apparent that the court hearing the review application cannot be said to be not having jurisdiction to hear it. Therefore, condonation for delay by recourse to Section 14 will not be permissible in the present case.

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The question therefore boils down to something more fundamental. Can the period of pendency of the review petition before the trial court can be condoned under Section 5 of the Limitation Act.

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I find merit in the plea advanced on behalf of the plaintiff opposite parties that delay occasioned during the pendency of review petition cannot be attributed to them. There was a delay indeed, but it was a circumstance beyond the control of the plaintiffs/petitioners as the matter was pending in review for seven long years. After the rejection of the review petition, the petitioners diligently moved the first appellate court and there was a delay only sixty days in preferring the appeal, which cannot be said to be inordinate for condoning the delay. On principle, the time elapsed during pendency of review has perforce to be excluded in view of the ratio laid down in in State of Manipur & Others Vs. All Manipur Regular Post Vacancies S.T.A. & Others , (1997) 10 SCC 385 .

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Now coming to the issue of sixty days delay subsequent to the

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2025:JHHC:27950 .

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disposal of the review application, the period has been explained as that occasioned because of death of one Sri Shankar Lal Khetan, who was conducting counsel on behalf of the plaintiffs in the learned trial court. 16. Under the circumstance the delay that occasioned on pendency of civil review, is fit to be condoned.

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On the whole the order of condonation of delay does not warrant inference by this Court in exercise of power under Article 227 of the Constitution.

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Civil Miscellaneous Petition accordingly stands dismissed. Pending Interlocutory Application, if any, is disposed of.

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(Gautam Kumar Choudhary, J . )

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Sandeep/

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Angad Sharma Alias Angad Barhi v. Anup Rajgaria

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Angad Sharma Alias Angad Barhi v. Anup Rajgaria

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