KAMLA DEVI Vs. SHEO PRASAD MISHRA

JUDGEMENT

(1.) The plaintiff filed Title Suit No. 6/8 of 1953/54 in the Court of the Subordinate Judge at Arrah for partition of certain properties. Devendra Mishra was defendant No. 3 in the suit which was, ultimately, dismissed by a judgment and decree dated the 28th July, 1965. On the 18th October, 1955, the plaintiff filed this first appeal in this Court. It is unnecessary to give details; but the fact is admitted on all hands that service of notice was not effected upon minor respondent No. 3 Devendra Mishra. On the 3rd May, 1960, the case was placed for orders before Kanhaiya Singh, ,J. Two weeks' time was prayed for to take steps for fresh service of notice upon minor respondent No. 3 ; but the learned Judge granted only one week's time. He made the order peremptory. The order was not complied with in time, and, therefore, the appeal stood dismissed as against minor respondent No. 3. Thereafter, the plaintiff filed Miscellaneous Judicial Case No. 571 of 1960 for restoration of the appeal as against the minor respondent. By an order dated the 12th March, 1962, the learned Judge, Kanhaiya Singh, J., dismissed the application. The plaintiff then filed a Letters Patent Appeal against that order, and it was numbered as Letters Patent Appeal No. 20 of 1962. By an order dated the 12th May, 1965, the Bench, which heard the Letters Patent Appeal, dismissed it. The plaintiff then filed an application under Order XLI, Rule 20 of the Code of Civil Procedure for addition of respondent No. 3 as a respondent in this appeal. This was ordered to be heard at the time of final hearing of the appeal.

(2.) The first appeal has now been put up for hearing. The plaintiff has also filed an application under Order XXIII, Rule 1 of the Code for permission to withdraw the suit itself. The respondents have filed a counter affidavit.

(3.) The first point which Mr. Shreenath Singh has argued on behalf of the plaintiff-appellant is that the peremptory order of Kanhaiya Singh, J., under which the appeal was dismissed as against minor respondent No. 3, is without jurisdiction because the appeal could not be dismissed on a date which was not fixed for hearing of the case. I need not go into the merits of this argument because the plaintiff-appellant could take this point before the learned Judge himself in Miscellaneous Judicial Case No. 571 of 1960 and also in Letters Patent Appeal No. 20 of 1962. As this was a point of attack which she might and ought to have raised earlier, the principle of res judicata applies, and the plaintiff-appellant cannot be allowed to raise ihis point at this stage, i.e., a subsequent stage. This is quite enough to dispose of this argument.