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1998 DIGILAW 701 (MP)

Raghunath Prasad v. Parwati Devi

1998-09-16

C.K.PRASAD

body1998
JUDGMENT This is defendant's second appeal under section 100 CPC against the judgment of affirmance. Plaintiffs filed the suit for declaration of their title as also for a declaration that the sale-deed executed by defendant No. 2, i.e., Nandlal, husband of plaintiff No. 1 and father of plaintiff No. 2 to be null and void. Civil Judge, Class II, Sidhi by judgment and decree dated 26.4.1983 passed in Civil Suit No. 15A/81 decreed the suit. Defendent No. 1 aggrieved by the same preferred appeal and the Additional District Judge, Sidhi by judgment and decree dated 28.10.1988 passed in Civil Appeal No. 32A/83 dismissed the appeal. Defendant No. 1 being aggrieved by the same has preferred this appeal. By order dated 29.7.1989 appeal has been admitted on the following substantial questions of law : 1. Whether the appellant at the initial stage of the trial has been afforded opportunity to defend his case, and if not, whether the judgment and decree impugned results into miscarriage of justice? 2. Whether on the face of the pleadings, the defendant-appellant having pleaded that the property in question purchased by him has been sold by Nandlal for benefit of the prope11y i.e. for paying the Govt. dues etc., still it could be said that the said sale is hit by para 260 and 261 of Hindu Law made applicable to the Vindhya Pradesh Region? Shri Apurba Mukhopadhyay appears on behalf of the appellant whereas Shri P.R. Bhave appeared on behalf of their respondent 1 and 2. In view of the order which I propose to pass in this appeal it is not necessary to narrate the facts of the case. It is the stand of the defendant-appellant that he was not given an opportunity to defend his case and on this ground alone the judgment and decree of the Courts below have been vitiated. However, learned counsel appearing on behalf of the respondents 1 and 2 submits that the defendant was given sufficient opportunity to defend his case and he having not availed the same, cannot be permitted to raise this plea before this Court in appeal. It is relevant here to state that by order dated 4.10.1982 this defendant was given last opportunity to adduce evidence. Thereafter the matter was taken up on 17.2.1983 and he was given further time to adduce evidence on payment of cost. It is relevant here to state that by order dated 4.10.1982 this defendant was given last opportunity to adduce evidence. Thereafter the matter was taken up on 17.2.1983 and he was given further time to adduce evidence on payment of cost. Thereafter when the matter was taken up on 19.4.1983 an application was filed by the defendant for amendment which was allowed. Thereafter, prayer for adjournment of the case for adducing evidence made by the defendant has been rejected. Mr. Apurba Mukhopadhyay states that this clearly shows that the defendant was not given opportunity to defend his case. It is relevant here to state that in the application for adjournment of the case for adducing evidence, defendant has stated that after amendment, he could not anticipate the evidence he shall be required to adduce. Shri Mukhopadhyay submits that as the amendment was allowed on 19.4.1983, defendant bonafide assumed that the case shall be adjourned for leading evidence. In the facts and circumstances of the case, I am of the opinion that the anticipation of the defendant that the case shall be adjourned for leading evidence was bonafide and in the facts and circumstances of the case, the trial Court ought to have granted further opportunity to the defendant to adduce evidence. In view of the aforesaid, I am of the opinion that the defendant was not given opportunity to defend his case and on this ground alone the judgment and decree of the Courts below are fit to be interfered with. As the suit is pending since 1981, I deem it expedient to direct the trial Court to dispose of the suit within a fixed period. Mr. Mukhopadhyay appearing on behalf of the appellant and the counsel for the respondent 1 and 2 state that the parties shall appear before the trial Court on or before 26.10.1998. Defendant-appellant shall adduce his evidence on or before 31.12.1998. Thereafter the trial Court shall conclude the trial by 15th January 1999. In view of the aforesaid, judgment and decree of the Courts below are set aside and the matter is remitted back to the trial Court for proceeding in accordance with law, keeping in mind the directions given above. Appeal stands allowed with cost to be paid by the appellant to the respondents. Counsel fee Rs. 1,000/-.