Research › Search › Judgment

Patna High Court · body

2001 DIGILAW 573 (PAT)

Champa Devi And Another v. Anant Prasad Singh

2001-07-12

ASHOK KUMAR VERMA

body2001
Judgment Ashok Kumar Verma, J. 1. The appellants have filed this appeal against the order dated 28-9-1994 passed in Misc. Case No. 1 of 1993 by the Additional District Judge II, Jamui, whereby the learned Additional District Judge has dismissed the Misc. Case, which had been filed for restoration of the Title Appeal No. 12 of 1990, which had been dismissed for default on 17-9-1993. 2. It was argued by the learned lawyer of the appellants that the learned Advocate who was engaged in the Title Appeal No. 12 of 1990 by the appellants had been prevented by sufficient cause from appearing when the appeal was called on 17-9-1993. 3. The Misc. Case No. 1 of 1993 had been filed by Mostt. Sohagi Devi, who was appellant No. 1 in this appeal and others. According to the Appellants (Petitioners), they were taking steps on every date and there was no laches on their part and on 17-9-1993 the appeal was fixed for the receipt of lower Court Records but it had not been received and when the appeal had been called on 17-9-1993, the Karpradaz had gone to call the lawyer, who was working in another Court and after some time when he came there, the appeal had been dismissed for default. According to the petitioners-appellants they had not intentionally neglected the appeal. 4. The respondent, opposite party had contested the Misc. Case and filed rejoinder and according to him, Title Appeal No. 12 of 1990 was unnecessarily pending due to lingering attitude of the petitioners-appellants nad on the date fixed in the appeal i.e. 17-9-1993 no one had turned up on repeated calls on behalf of the appellants. 5. It was argued by the learned lawyer for the appellants that before 17-9-1993 the date on which the Title Appeal had been dismissed for default the earlier date was 17-6-1993 and on that date attendance had been filed on behalf of the appellants and it was ordered by the learned Additional District Judge to call for the lower Court Records and thereafter, the case was not put up on 17-7-1993 due to strike of the non-gazetted employees and on 17-9-1993, it was put up and attendance had been filed on behalf of the appellants but the learned Lawyer could not appear on call as he was engaged in another Court. The contention of the learned lawyer for the respondent was that one of the appellants is said to be present in the Court of Additional District Judge and she should have responded on call. 6. It appears from perusal of the records of Title Appeal No. 12 of 1990 that on 17-6-1993, attendance had been filed on behalf of the appellants and 17-7-1993 was the next date fixed in the appeal and the lower Court Records had been called for and thereafter, the Title Appeal was put up on 17-9-1993. It has been mentioned in the order-sheet dated 17-9-1993 of the learned Additional District Judge that due to strike of the non-Gazetted employees, the records had been put up on that date, and attendance had been filed on behalf of the appellants. 7. In the facts and circumstances of the case, the aforesaid contention of the learned lawyer for the appellants that on 17-6-1993 the lower Court Records had been called for and due to the strike of the non-gazetted employees, the records of the Title Appeal had been put up on 17-9-1993, in the Court of the Additional District Judge and that on that date the attendance had been filed on behalf of the appellants, is tenable. 8. In Misc. Case No. 1 of 1993 two witnesses had been examined on behalf of the petitioners appellants and one witness had been examined on behalf of the opposite party-respondent. P.W. 1 is Meena Devi, one of the appellants of the appellant. She has stated that her Munshi had gone to call the lawyer and her lawyer had come after 15-20 minutes and by then, the appeal had been dismissed. She has aslo stated that she has not intentionally allowed the case to be dismissed. P.W. 2 is Sunil Kumar Sinha, Advocates clerk. He has said that the case had been called out and he had gone to call the lawyer and in the meantime, the case was dismissed. He has said in his cross-examination that he does not remember that in which Court and in which case his lawyer was engaged. He was examined as a witness on 23-8-1994 and the Title Appeal had been dismissed for default on 17-9-1993. So he was examined as a witness in Misc. He has said in his cross-examination that he does not remember that in which Court and in which case his lawyer was engaged. He was examined as a witness on 23-8-1994 and the Title Appeal had been dismissed for default on 17-9-1993. So he was examined as a witness in Misc. Case after about 11 months of the dismissal of the Title Appeal and in that case, it may not be possible for him to remember as to in which Court and in which case his lawyer was engaged. 9. O.P.W 1 Anant Prasad Singh has stated that in spite of repeated calls appellant, Sohagi Devi her Karpradaz or lawyer had not turned up and thereafter, the case had been dismissed. He has admitted in his cross-examination that on that date, the appeal had not been fixed for hearing. 10. The facts and circumstances show that on 17-9-1993 when the appeal had been dismissed for default, it was not fixed for hearing and on the date preceding that date when the appeal had been put up before the learned Additional District Judge attendance had been filed on behalf of the appellants and the lower Court Records had been called for and due to the strike of the non-gazetted employees the appeal had been put up on 17-9-1993 and not on the date which had been fixed i.e., 17-7-14993. The facts and circumstances show that there was sufficient cause for non-appearance of the appellants on 17-9-1993 when the Title Appeal No. 12 of 1990 had been called. 11. In the facts and circumstances of the case, this appeal is allowed and the impugned order dated 28-9-1994, passed by the learned Additional District Judge in Misc. Case No, 1 of 1993 is set aside. Title Appeal No. 12 of 1990 is restored to its original file. The learned Additional District Judge is directed to dispose of the Title Appeal on merit after giving opportunity of hearing to both the parties.