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2001 DIGILAW 399 (JHR)

Kunjal Singh v. Parvati Devi

2001-06-22

DEOKI NANDAN PRASAD

body2001
JUDGMENT Deoki Nandan Prasad, J. 1. This Misc. Appeal is directed against the order dated 23.1.1993 passed by 4th Addl. Judl. Commn. Ranchi in Misc. Case No. 1 of 1982 arising out of Title Appeal No. 76/78 29/80 whereby and where under the learned Addl. Judl. Commissioner dismissed the Miscellaneous case. 2. Short facts giving rise to this appeal is that the respondent No. 1 filed Title Appeal No. 76 of 1978. No notice of the said Misc. Case was ever tendered or served either through the process server to the petitioner or the proforma defendants Nos. 2 to 5. The said Misc. Case was allowed and the appeal was admitted ex-parte which was numbered as Misc. Case No. 76 of 1978. It is further stated that no notice of the said appeal was either tendered or served upon the petitioner/ appellant. The appeal was heard ex-parte which was allowed by the judgment dated 3.7.1982 by the learned 3rd Additional Judicial Commissioner, Ranchi. Thereafter the petitioner/appellant rushed to Ranchi and got the matter enquired into and got the record of Title Appeal No. 76 of 1978 and inspected through their lawyer. It was detected that the appeal was filed against the judgment and decree dated 7.8.1976 passed by Shri R.C. Srivastava, 3rd Addl. Subordinate Judge, Ranchi in Title Suit No. 132 of 1965. Thereafter the petitioner/appellant filed an application under Order XLI Rule 21 read with Section 151 of the Code of Civil Procedure for setting aside the ex-parte decree and after hearing the appeal, the learned Court below dismissed the Misc. case without appreciating the actual fact and evidence collected on record. 3. Mr. Debi Prasad, the learned Senior Counsel for the appellant submitted at the very outset that the Court below committed error in dismissing the Misc. Case presuming that Shri Bansi Babu and Shri B. Swaroop were the counsels for the appellant/respondent in the appeal but none of them had filed any vakalatnama in the said appeal and so there was nothing material to indicate that both the learned counsels named above had ever appeared on behalf of the appellant/respondent in the lower appellate Court. Case presuming that Shri Bansi Babu and Shri B. Swaroop were the counsels for the appellant/respondent in the appeal but none of them had filed any vakalatnama in the said appeal and so there was nothing material to indicate that both the learned counsels named above had ever appeared on behalf of the appellant/respondent in the lower appellate Court. It is also submitted that no notice or summons was ever served upon the appellant in respect of the said appeal and further more the Courts order dated 19.6.1980 shows that no service report was received and, therefore, Nazir was asked to file the service report. But even then the lower appellate Court heard the appeal ex-parte without service of notice validly. It is further submitted that the Court below relied upon some of the petitions Ext. 2 series which were said to have been filed by the learned counsels Shri Bansi Babu and Shri B. Swaroop Babu but those petitions would indicated about giving information to the Court that the respondent/appellant have not yet been noticed or informed as they are residing in remote/village as well as the entire documents are lying with the appellant/respondent. Therefore those petitions cannot be taken as appearance of the learned counsels on behalf of the appellant/respondent. He also relied upon a case reported in 1993 Vol III, PLJR 443. On the other hand. Mr. A.K. Sahani, the learned counsel appearing on behalf of the respondents contended before me that the appellants were fully aware about the appeal and they avoided to appear in the said appeal and, therefore, the Court below has rightly passed the order. It is further submitted that both the learned counsels, namely Shri Bansi Babu and Sri B. Swaroop had appeared from the side of the appellant and they had also filed petitions which will go to show that they had appeared from the side of the appellant and. therefore, there is no illegality in the impugned order. 4. It is apparent from the order dated 19.6.1980 that no service report was received. It is further clear from the said petitions Exts. C series that those petitions were filed giving information to the Court that the entire documents are lying with the appellant/respondent who has not yet been informed as he has been residing in the interior area. 4. It is apparent from the order dated 19.6.1980 that no service report was received. It is further clear from the said petitions Exts. C series that those petitions were filed giving information to the Court that the entire documents are lying with the appellant/respondent who has not yet been informed as he has been residing in the interior area. It is an admitted position that none of the lawyers had filed any vakalatnama on behalf of the appellant in the lower appellate Court. Moreover the entries documents said to have been lying with the appellant which were taken back after judgment in the trial Court. There appears no material on the record to show that notice or summons had ever been served upon all the appellant/ respondent. 5. A.W. 2 clearly stated in his evidence that no notice of the appeal was ever served upon and he had never author Shri Bansi Babu and Shri B. Swaroop Advocates to do pairvi in the appeal. He also claimed that the Title Suit was decided in his favour in the trial Court and he would suffer irreparable loss if the ex-parte judgment in appeal is not set-aside and he never left taking steps in the appeal intentionally. O.P.W. 1 proved the report of process server. The evidence of O.P.W. 2 has not been corroborated by any other witness. 6. The Court below passed the order impugned dismissing the Misc. case only relying on the petitions Ext. C Series filed by the learned advocates where as those petitions indicate only about the information giving to the. Court that the appellant/respondents are residing in the interior area and they have not been informed about this appeal as well as the entire documents are lying with them. In this way, it is now obvious that the appellant/respondent had no knowledge about the appeal as there is no document to show that the notice or summons had ever been served upon them. Since both parties have appeared and they are ready to contest the appeal and as such in my view, the matter should be decided once for ever in the appeal, after hearing both sides on merit. As such I find that the Court below passed the order impugned without giving a reasonable opportunity to the appellant/respondent for which the order impugned is liable to be set-aside. 7. As such I find that the Court below passed the order impugned without giving a reasonable opportunity to the appellant/respondent for which the order impugned is liable to be set-aside. 7. Having regard to the facts and circumstances, coupled, with the evidence on record. I find merit in this appeal which is accordingly allowed. In the result the order dated 23.1.1993 passed in Misc. Appeal No. 1 of 1982 is set- aside subject to the condition that the appellant shall pay a costs of Rs. 500/- to the respondents. Consequent the ex-parte order passed in Title Appeal No. 76 of 1978 is set-aside. The lower appellate Court is directed to dispose of the appeal after hearing both parties in accordance with law. 8. Appeal allowed.