Krishna Dutt Mishra vs Vijay Kumar Tiwari
2023 Latest Caselaw 9108 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 2
 
Case :- WRIT - A No. - 4710 of 2023
 
Petitioner :- Krishna Dutt Mishra
 
Respondent :- Vijay Kumar Tiwari
 
Counsel for Petitioner :- Umeshkumar Mishra,Mithilesh Kumar Mishra
 

 
Hon'ble Neeraj Tiwari,J.

Supplementary affidavit filed today, is taken on record.

Heard learned counsel for the petitioner.

Learned counsel for the petitioner submitted that respondent has filed SCC Suit No. 141 of 2011, which was allowed ex parte vide order dated 07.12.2021. Petitioner has filed application under Order IX Rule 13 CPC, which was rejected vide order dated 20.12.2022 against which, no appeal has been filed. Now, petitioner has filed revision against the ex parte order dated 07.12.2021 along with application under Section 5 of Limitation Act. The same was rejected vide order dated 14.02.2023 on the ground of delay. He next submitted that due to wide spread of Corona virus, petitioner was having no information about the case and could not appear before the Court. Therefore, impugned order is bad and liable to be set aside.

I have perused the ex parte judgment & order dated 07.12.2021, application dated 7.3.2022 filed under Order IX Rule 13 CPC and its rejection order dated 20.12.2022, revision dated 6.2.2023 and impugned order dated 14.02.2023. There is no dispute on the point that earlier suit was allowed ex parte against which petitioner has filed application under Order IX Rule 13 CPC, which was rejected and now he has preferred revision. In the revision, he has taken the very same ground which he has earlier taken in application under Order IX Rule 13 CPC and no new ground has been taken on merits.

I am of the firm view that once, application under Order IX Rule 13 CPC has been rejected, either, he has to file appeal against the said order or assail the ex parte order on merits, but in revision not a single ground has been taken on merits except the ground of non appearance before the Court, which has already been rejected vide order dated 20.12.2022 while deciding the application under Order IX Rule 13 CPC. Petitioner cannot be given liberty to raise the same ground in revision which he has already taken in application under Order IX Rule 13 CPC. Now the grounds so taken by the petitioner in revision is no more res integra as the same has already been decided by the order dated 20.12.2022 , therefore, revisional Court has rightly rejected the revision vide order dated 14.02.2023.

Accordingly, petition lacks merit and is dismissed. No order as to costs.

Order Date :- 28.3.2023/Arvind