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1985 DIGILAW 1194 (ALL)

Prakash Ahir v. Vishwa Nath

1985-12-16

A.N.DIKSHITA

body1985
JUDGMENT A.N. Dikshita, J. - This is a Defendants second appeal against the judgment and order dated 3-10-1978 of the 1st Additional District Judge, Gorakhpur, dismissing the appeal filed by the Appellant against the judgment and order dated 5.07.1977 of HI Munsif, Gorakhpur, decreeing the Plaintiffs' suit with costs. 2. The Plaintiffs-Respondents filed a suit against the Appellant for a decree of possession over the disputed land and for demolition of the constructions existing over it through the process of the court on the ground that the Appellant had illegally encroached upon their land in Creak No. 80 and had raised a Kothri thereon. The suit was contested by the Appellant alleging that Sabiq plot No. 68, area 15 decimal, was sold to them by Mohd. Abdul Rashid Khan on 22.08.1956 and since then they were in possession and the constructions were not new. The allegation of the Plaintiffs that they were Bhumidhar of plot No. 80 as recorded in the consolidation held in 1960-61 having an area of .63 acres was denied. 3. On the pleadings of the parties several issues were framed. During the proceedings the necessity of preparation of a map were felt. The Plaintiffs were directed to summon the original settlement map of 1914-15. Somehow or the other it was not summoned by the Plaintiffs and instead an application was filed by the Plaintiffs for preparation of a map on the basis of consolidation map. Lateron the court Amin was directed to prepare a map on and basis of consolidation map. The Court Amin failed to find fixed points on the basis of consolidation map of 1960.61 and took the fixed points from the copy of the settlement map of 1914-15. A report on the basis of such fixed points was prepared by the Court Amin and filed in court. Objections against the report were invited and 06.05.1977 was fixed for the purpose. However, as the Defendant-Appellant absented himself on that date the report of the Amin was confirmed in his absence and 5.07.1977 was fixed for final hearing. On the date of final hearing i. e. 05.07.1977 an application for adjournment of the case was filed on behalf of the Defendant-Appellant on the ground that he was ill since 05.05.77. However, as the Defendant-Appellant absented himself on that date the report of the Amin was confirmed in his absence and 5.07.1977 was fixed for final hearing. On the date of final hearing i. e. 05.07.1977 an application for adjournment of the case was filed on behalf of the Defendant-Appellant on the ground that he was ill since 05.05.77. The trial court rejected the application on the ground that there was no medical certificate in support of the illness of the Defendant from 5.05.1977 nor an affidavit to that effect had been filed. The affidavit in support of the adjournment application by one Durga Prasad was not believed. The Plaintiffs-Respondents were permitted to examine two witnesses after which they closed their evidence. As the Defendant-Appellant was not present no evidence in support of his case was forth coming. Arguments were heard on that date and the suit was decreed with costs. 4. Aggrieved an appeal was filed which too was dismissed by the judgment and order dated 03.10.78. 5. Counsel for the parties have been heard at some length. The challenge on behalf of the Defendant is that the court below erred in law in affirming the trial court's exparte decree without considering the explanation advanced by the Defendant-Appellant. In this connection the main thrust of the submission of the counsel for the Appellant is that it was imperative for the first appellate court to have considered the ground for non-appearance of the Appellant on the dates fixed which has not been done and instead the first appellate court went on to examine the merits of the case ignoring the record and was thus misled. 6. In Shri Patit Pawaneshwar Mahadeoji Vs. Nagar Mahapalika, (1979) AWC 305 the trial court had rejected the adjournment application and had decided the suit exparte. The appeal against the said decree was allowed on the view that the trial court should have adjourned the hearing of the case as there was sufficient cause. The matter came up before this Court on reference before a Division Bench and the Bench answered the reference by saying that it was open to the court hearing the appeal against an ex-parte decree to go into the ground of non-appearance of the defaulting party. The matter came up before this Court on reference before a Division Bench and the Bench answered the reference by saying that it was open to the court hearing the appeal against an ex-parte decree to go into the ground of non-appearance of the defaulting party. In the case before me also the appellate court was dealing with an ex parte decree and in terms of the Division Bench decision in Patit Pawaneshwar s case (supra) it was open to it to have gone into the question whether the cause for absence of the Appellant on 06.05.1977 and 5.07.1977 was sufficient particularly when the question was raised before it. The appellate court, ho A ever, failed to decide that question. If a court has power vesied in it fails to exercise that power inspite of the point being raised it does amount to failure to exercise the jurisdiction vested in it. The non-consideration of the sufficiency of cause for the absence of the Appellant on the said two dates has thus resulted in a miscarriage of justice as the Appellant's version regarding the credibility of the Amin's report and regarding the merits o;: the suit had not been considered by the courts. The decree of the appellate court cannot, therefore, be sustained. In the circumstances I think this is a fit case for remand. 7. In the result the appeal is allowed with costs and the impugned judgment and decree dated 3.10.1978 are set aside and the case is remanded back to the 1st Additional District Judge, Gorakhpur, for examining the sufficiency of cause for non-appearance of the Defendant-Appellant on 6.05.1977 and 5-7-77. If the appellate court finds the cause for the absence of the Appellant sufficient it will be open to it to sard the case back to the trial court for a fresh decision according to law. However, if the appellate court proceeds to-decide the appeal on merits it shall view the report of the Amin again in the light of the submissions which may be advanced on behalf of the parties and in the light of the objections to the said report, if any.