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Judgment
6 paragraphs · 332 words@JUDGMENT-JUDGMENT
Sanjay K. Agrawal, J
Heard.
Mr. Manoj Paranjpe, learned counsel for the appellant/plaintiff, would submit that plaintiff's civil suit was dismissed by the trial Court on 04/09/2008 invoking Order 9 Rule 4 of the CPC against which a revision was maintainable in view of the judgment rendered by the Madhya Pradesh High Court in the matter of Swal Singh v. Ramsakhi & Ors.1 and thereafter in Kumar Mohammad Khan v. Nawab Mansoor Ali Khan Pataudi & Ors.2, but instead of filing a revision application, the appellant/plaintiff mistakenly and erroneously preferred an appeal which has been dismissed by the first appellate Court on 07/09/2010 not only on technical ground but also on merits of the matter, therefore, appellant/plaintiff be granted the permission to withdraw this second appeal and file review application before the first appellate Court along with an application under Section 5 read with Section 14 of the Limitation Act, 1963.
The prayer made by learned counsel for the appellant/plaintiff seems to be fair and reasonable.
Accordingly, the second appeal is dismissed as withdrawn. However, the appellant/plaintiff is at liberty to file review application against the order of the first appellate Court for review/recall along with an application for condonation of delay stating clearly that this second appeal remained pending before this Court from 27/10/2010 to 28/08/2020, which the first 1 2003 (1) MPLJ 31 2 (2016) SCC Online MP 1322 appellate Court will consider in accordance with law keeping in view that the appellant invoked the remedy of second appeal before this Court and the matter remained pending before this Court from 27/10/2010 to 28/08/2010. It is made clear that this Court has not expressed any opinion on the merits of the matter. However, it is directed that in case of filing review petition along with the application for condonation of delay by the appellant/plaintiff, the same shall be considered and disposed of within 45 days after service of notice to the other side. No cost(s).