JUDGMENT Vineet Saran, J.
1. A Suit No. 432 of 1972 was filed by one Jangi Lohar. (who is arrayed as respondent No. 3 in this writ petition) praying for a decree of permanent prohibitory injunction against the defendants in the suit, which included the petitioner herein as defendant No. 6. The suit was contested by some of the defendants, including the brother of the petitioner but proceeded ex parte against the petitioner and was decreed by the trial court on 7.4.1978. Aggrieved by the said judgment and decree, a few of the defendants including the brother of the petitioner, filed Appeal No. 205 of 1972 which was partly allowed by the appellate court.
2. Thereafter, in the year 1981, the petitioner filed Original Suit No. 65 of 1981 praying for cancellation of the decree passed in Original Suit No, 432 of 1972 as well as in the Appeal No. 205 of 1972. This suit was contested by the defendants who are arrayed as respondent Nos. 3 to 10 in this writ petition. On the pleadings of the parties, a preliminary issue was framed as to whether the subsequent suit was maintainable or not. This issue was decided by the trial court on 15.10.1984 and it was held that the present Suit No. 65 of 1981 filed by the plaintiff was not maintainable. Against the said order of the trial court, the plaintiff-petitioner filed a Revision No. 187 of 1984 before the District Jud'ge, Azamgarh. After hearing the parties and considering the documentary evidence on record, the learned District Judge dismissed the revision vide its order dated 11.4.1986. Against the aforesaid two orders, passed by the trial court as well as revislonal court, the petitioner has preferred this present writ petition.
3. I have heard Sri A.K. Srivastava, learned counsel on behalf of the petitioner and Sri C.B. Gupta, learned counsel for the respondents.
4. Sri Srivastava has contended that the Original Suit No. 432 of 1972 was decreed ex parte against the petitioner (who was defendant No. 6 in that suit) as no notice had been issued to the petitioner. Although the learned counsel for the petitioner has argued that no notice was issued to the petitioner-defendant, but the same is not established from the record. In this writ petition as well as in the O.S. No. 65 of 1981, copy of which has been filed as Annexure-2 to the writ petition, the only assertion of the petitioner is that no notice was received by him. From the pleadings, it is not established that notice in the suit was not issued to him. The mere fact that the suit proceeded ex parte against the petitioner and was ultimately also decreed against him, does not entitle the petitioner to have the decree cancelled, unless it was obtained by fraud or misrepresentation. Such is not the case in this writ petition.
5. Learned District Judge has held that the decree in Suit No. 432 of 1972 was passed after the same was hotly contested by some of the defendants, including own brother of the petitioner, who was also a defendant in that suit. The brother of the petitioner had also filed an appeal against the decree passed in Suit No. 432 of 1972 and contested it tooth and nail. The suit proceeded ex parte against the petitioner after he was deemed to have been served.
6. After hearing learned counsel for the parties as well as having perused the documents filed, I am in agreement with the finding arrived at by the trial court as well as by the learned District Judge. In the absence of any allegations of fraud or misrepresentation in the plaint, the subsequent Suit No. 65 of 1981 would not be maintainable. It has not been established by the petitioner that the Suit No. 432 of 1972 proceeded and was decided without issuing notice to the petitioner. Besides this, the own brother of the petitioner continued to contest the case even till the appellate stage and after having lost from both the Courts, the petitioner cannot now be permitted to raise the same issue again by filing a fresh suit. Finality has to be given to the proceedings at some stage and the same cannot continue to be prolonged on one pretext or another.
7. As such, I do not find any infirmity in the orders passed by the courts below. In the result, the writ petition fails and is accordingly dismissed. There shall be no orders as to costs.