BASIL MICHAEL QUADROS Vs. STATE OF BIHAR

JUDGEMENT

(1.) The instant petition has been filed by the petitioner under Article 227 of the Constitution of India against the order dtd. 6/9/2018 passed by the learned District Judge, Bhagalpur in Title Appeal No. 96 of 2017 by which he has admitted the appeal.

(2.) Briefly stated, the facts of the present case are that the petitioner along with respondent nos. 4 to 10 filed Title Suit No. 337 of 2003 seeking following reliefs:-

(3.) Learned counsel for the petitioners submitted that the impugned order dtd. 6/9/2018 is not sustainable as it is an illegal order passed without consideration of the provisions of law. As the law is well settled that if the appeal is barred by law of limitation then the court is duty bound to hear on the point of limitation first, that too, only after giving opportunity of hearing to the other side, in the present case the petitioners, then only the court can proceed with the appeal on merits. In the present case the appeal was admittedly barred by law of limitation as it has been filed after more than 11 years. The learned District Judge was duty bound to first grant an opportunity of hearing to the petitioner and only thereafter to consider the issue of limitation and proceed with the matter on merits in the appeal. But the learned first appellate court did not give any opportunity of hearing to the petitioner and admitted the appeal in spite of appeal being barred under the law of limitation and proceeded to hear the matters on merits while holding that the issue of limitation shall be considered at the time of final judgment and went on to issue notice to the petitioner/respondent 2nd set. This order is completely perverse as it is against the law as well as even the previous orders passed by the same learned first appellate court as after the appeal was filed, vide order dtd. 4/9/2017, the learned District Judge taking note of the application for condonation of delay in filing the appeal observed that it appeared necessary to hear other side on the petition filed for condonation of delay and ordered for issuance of notice.