SHAHADATULLAH Vs. MOMINA KHATOON

JUDGEMENT

(1.) THIS is a review petition under Order XLVIII, Rule 1 CPC preferred against the judgment and order, dated 18-1-1999, passed by this Court in Second Appeal No. 28 of 1996- 97, dismissing the appeal and confirming the order, dated 25-9- 1996, passed by the learned lower appellate Court.

(2.) I have heard the learned Counsel for the parties and have also perused the record, on file. Assailing the impugned order, the learned Counsel for the petitioner contended that since the suit was filed before the expiry of two months of the issuance of notice under Section 80 CPC, the same was not maintainable and the learned Courts below grossly erred in entertaining the same; that filing of the suit before the expiry of the prescribed two months is an exception to the general rule, which could not be legally construed; that the learned Courts below, have erred in holding otherwise as since the requirement of service of notice under Section 80 CPC is not technical defect; that in any view of the matter, this Courts has also grossly erred in confirming the order, passed by the learned Court below, vide its impugned order which cannot, at any stretch of imagination, be sustained and this review petition deserves to be allowed. In support, reliance has been placed on the case law reported in 1994 RD 197. The learned Counsel for the opposite party, in reply, urged that since, as per the established principle of law, it is only the State which can only object in respect of service of notice under Section 80 CPC, in any view of the matter, this Court was perfectly justified in rendering the impugned order with which no interference is called for and therefore, this review petition, having no force deserves dismissal outright.

(3.) IN view of the above, this review petition, being devoid of merits, it accordingly, dismissed and the impugned order passed by this Court is hereby, confirmed and maintained. Parties to appear before the learned trial Court on 9-10-2002, which shall now proceed with the matter, in question for its expeditious disposal. Let records be returned forthwith, to the Courts, concerned. Revision dismissed.