ORDER

Date : 08-08-2018 Heard Mr. N. N. Upadhyaya, learned counsel for the petitioners.

2. By this application under Article 227 of the Constitution of India, the petitioner has challenged the order dated 15.06.2018 passed by the learned District Judge, Kokrajhar in T.A. No.2/2017.

3. In view of the provision of order XLI Rule 11-A CPC, this Court is inclined to dispose of this revision at the motion stage without issuance of notice on the respondent.

4. The petitioners are defendants No.5, 6 and defendants No.1(d) in T.S. No.3/2007. In course of the proceeding, the learned trial Court i.e. Civil Judge, Kokrajhar framed a preliminary issue as follows-“Whether the suit is maintainable in law in its present form?”

5. Upon a detailed discussion, the learned trial Court had held that the suit is not maintainable and the suit was dismissed on contest with cost. Thereafter the respondents herein had preferred an appeal, being T.A. No.2/2017, which was presented before the Court of learned District Judge, Kokrajhar. The petitioners herein had appeared in the said appeal by filing a caveat and the petitioners had also filed their written objection agaisnt the admission of the appeal and against the maintainability of such appeal. However, the learned first Appellate Court was of the view that the plea raised by the petitioners herein are to be decided in the final hearing and the said learned Court was also of the view that a prima-facie involvement of both law and facts was found involved in the appeal and therefore, the appeal was admitted for hearing.

6. The learned counsel for the petitioners project that the appeal was filed beyond the period of limitation and the certified copy so produced along with the memo of appeal contained overwriting. It is also submitted that the petitioner as well as the respondents had applied for the certified copy of the trial Court judgment and clauses on the same day and therefore, it was not possible that the issuance of certified copy to the respondent would be made with unnatural delay of 32 days. It is further submitted that the suit land was a subject matter of another suit, being T.S. 1/2017, which was by and large between the same parties and therefore, the present suit being later in point of time was liable to be stayed under section 10 CPC and accordingly, the same principle would apply for the maintainability of the appeal.

7. The learned counsel for the petitioners has also submitted that the suit was filed without issuance of statutory notice to the State Government under section 80 CPC and, as such it was a well settled law that any suit filed against the Government without issuance of notice under section 80 CPC was not maintainable. It is submitted that these issues were raised by the objection filed by the petitioners but the same was not considered, while admitting the appeal for hearing.

8. This Court in the case of Ramawatar Agarwalla and another vs. Laxman Prasad Agarwalla, 2017 (4) GLT 334, has held that there was no impediment to hear the respondents side while admitting the appeal as they had appeared by lodging a caveat. Under such circumstances having seen the issues raised by the petitioner was not addressed by the learned first Appellate Court.

9. In view of the provision of Order XLI Rule 11-A CPC, without admitting this revision, this Court is inclined to grant liberty to the petitioners to file a fresh petition raising objection against the admission of the said T.A. No.2/2017 before the learned first Appellate Court and on such application being filed, it is provided that the learned first Appellate Court shall hear the parties afresh without being influenced by the order dated 15.06.2018, which shall not come in the way of entertaining such fresh objection petition.

10. In view of the nature of the order passed as indicated earlier, the issuance of prior notice of this application on the respondents is waived as they would not suffer any prejudice because they would get an op