Roshan Lal And Others vs Bisambhari Devi & Others

Sandeep Sharma, J

Before this Court could go into the merits of the review petition, Mr. R.K.Gautam, learned Senior Counsel representing respondents No.1 and 2 (hereinafter referred to as the petitioners), fairly states that judgment sought to be reviewed in the instant proceedings needs to be reviewed in the light of the judgment rendered by the Hon'ble Apex Court in Shyam Sunder Sarma Vs. Pannalal Jaiswal (2005) 1 SCC 436, wherein it has been held that on the dismissal of an application filed under Section 5 of the Limitation Act, the remedy available would be appeal not the Civil Miscellaneous petition.

Undisputedly, in the case at hand, petitioners approached this Court by way of petition filed under Article 227 of the Constitution of India, praying therein to set­aside the order dated 2.8.2018, passed by learned District Judge, Bilaspur, Himachal Pradesh in CMP No.540/6 of 2016, whereby an application having been filed by the petitioners under Order 41 Rule 3 CPC for condonation of delay for filing appeal, came to be dismissed.

In a petition filed under Article 227 of the Constitution of India, this Court vide judgment dated 28.11.2018, set­aside the aforesaid order passed by the learned District Judge, Bilaspur, whereas as per aforesaid judgment rendered by Hon'ble Apex Court in Shyam Sunder Sarma case(supra), appropriate remedy for the petitioner laying therein challenge to the order passed by learned District Judge, is/ was to file an appeal not Civil miscellaneous petition under Article 227 of the Constitution of India.

Having carefully perused the aforesaid judgment rendered by Hon'ble Apex Court, this Court finds merit in the present review petition and judgment dated 26.11.2018 passed by this Court needs to be reviewed.

At this stage, learned Senior Counsel representing the petitioners on instructions states that he may be permitted to withdraw the Civil Miscellaneous petition filed by him under Article 227 of the Constitution of India i.e. CMPMO No.428 of 2018. Permission granted being not opposed.

Consequently, in view of the above, the present review petition is allowed and judgment dated 28.11.2018, passed by this Court in CMPMO No.428 of 2018 is set­aside. However, liberty is reserved to the petitioners to move appropriate proceedings in appropriate Court of law, laying therein challenge, if any, to order dated 2.8.2019 passed by learned District Judge, Bilaspur, H.P., whereby application for condonation of delay came to be rejected.

Pending application(s), if any, also stands disposed of.