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2007 DIGILAW 723 (PAT)

Lallan Ram v. Gena Ram

2007-04-10

CHANDRAMAULI KR.PRASAD

body2007
Judgment Chandramauli Kr.Prasad, J. 1. Plaintiffs-Petitioners, aggrieved by the order dated 12.8.2005 passed by the Additional District Judge, Fast Track Court No. IV, Siwan in Misc. Case No. 4 of 2005 disallowing the limitation application, have preferred this application. 2. Short facts, giving rise to the present application, are that aggrieved by the judgment and decree dismissing the suit, plaintiffs preferred Title Appeal No.142 of 1973. Said appeal was dismissed by judgment and decree dated 15th of July, 1981. Aggrieved by the same, plaintiffs-petitioners preferred S.A. No. 578 of 1981 before this Court. This Court, by judgment and decree dated 16th of July, 1986, allowed the appeal, set aside the judgment and decree of the lower appellate court and remitted the matter back to it for reconsideration in accordance with law. After remand, the lower appellate court registered the case on 17.2.1988 and from 26.2.1996 to 5.3.2002, adjourned the case from day to day awaiting the receipt of the lower court records. The appellants made pairvy during this period. Ultimately, the record was received by the lower appellate court on 15.4.2002 and to the misfortune of the plaintiffs, the case was transferred to the Additional District Judge VII, by order dated 16.4.2002. But they were not informed. Thereafter, the case was again transferred to the Court of Additional District Judge, Fast Track Court No. IV by order dated 21.12.2002, but none were informed. The learned Judge, adjourned the case to 28.2.2003 but on the said date, neither plaintiffs-appellants before the Court below nor the respondents made any pairvy and the case was adjourned to 28.6.2003. The record was not placed before the learned Judge on 28.6.2003 instead placed on 30th of June, 2003 and finding that none of the parties have appeared in the appeal, adjourned the case to 5.9.2003. On 5.9.2003 also nobody appeared and the learned Judge, dismissed the appeal for default. 3. Plaintiffs then filed Misc. Case No. 4 of 2005 for restoration of the appeal along with prayer to condone the delay in its filing, inter alia, contending that they had paid the entire cost to the Advocates Clerk for pursuing the appeal and when returned from Assam and inquired from him, he did not give satisfactory reply. Thereafter on the advise of the Counsel, record was inspected on 17.5.2005 in which it was found that the same has been dismissed for default. 4. Thereafter on the advise of the Counsel, record was inspected on 17.5.2005 in which it was found that the same has been dismissed for default. 4. By reason of the impugned order, the learned Judge has rejected the prayer for condoning the delay in filing the miscellaneous case on the ground that the explanation put forth by the plaintiffs, is not justified. 5. Mr. R.S. Dvivedi, learned Counsel appearing on behalf of the petitioners, contends that the petitioners pursued the appeal right from the year 1988 to 2002 when it was adjourned from day to day awaiting the receipt of the lower court record and they having not been informed about the transfer of the case from one court to another court, it cannot be said that they were negligent. He also points out that petitioners cannot be restrained from carrying out any activity to earn their livelihood and as they went to Assam for earning their livelihood after instructing the advocates clerk to pursue the matter, they cannot be permitted to suffer on the failure of the advocates clerk to make necessary pairvy. 6. Mr. Akhileshwar Kumar, learned Counsel appearing on behalf of the opposite party, however, contends that the petitioners having not shown sufficient cause, the Court below rightly rejected the prayer for condoning the delay in filing the miscellaneous case. 7. Having appreciated the rival submission, I find substance in the submission of Mr. Dvivedi. The least which I can say is that the learned Judge, while rejecting the application for condoning the delay in filing the miscellaneous case, has not taken a pragmatic view. As stated earlier, petitioners made pairvy in the appeal from 1988 to 2002, during which period the Court was awaiting receipt of the lower court record. Had the learned Judge, in seisin of the case, a little sensitive, it would had procured the lower court records and disposed of the appeal. Had he done so, perhaps, the plaintiffs would not had faced the ordeal of dismissal of the appeal for default. 8. The very fact that the plaintiffs pursued the appeal for more than a decade, clearly indicates that they were interested in pursuing the appeal and were let down by the Advocates Clerk. Had he done so, perhaps, the plaintiffs would not had faced the ordeal of dismissal of the appeal for default. 8. The very fact that the plaintiffs pursued the appeal for more than a decade, clearly indicates that they were interested in pursuing the appeal and were let down by the Advocates Clerk. In my opinion, the plaintiffs had shown sufficient cause for condoning the delay in filing the miscellaneous case and thus, the Court below had not exercised its jurisdiction vested in it by law, while refusing the prayer of the petitioners. 9. The learned Judge, in seisin of the miscellaneous case, shall now hear the case on merit. As the matter is pending since long, he shall dispose of the same within six months. Counsel for the appellants and Opposite Party undertake that they shall appear before the Court below within six weeks. 10. Accordingly, this application is allowed, impugned order dated 12.8.2005 passed by the Additional District Judge, Fast Track Court No. IV, Siwan in Misc. Case No. 4 of 2005 is set aside, delay in filing the miscellaneous case is condoned. The learned Judge shall now proceed in the matter as indicated above.