Research › Search › Judgment

Jharkhand High Court · body

2009 DIGILAW 1195 (JHR)

Asiruddin Ali v. Mohiuddin Kalal,Ors

2009-08-26

R.K.MERATHIA

body2009
Order This appeal has been filed against the order dated 28.2.2006 passed by learned 1st Additional District Judge, Giridih dismissing Misc. Case No. 2 of 1997 filed by the appellant for re-admission of Misc. Appeal No. 13 of 1985. 2. Mr. B.V. Kumar, learned counsel appearing for the appellant, submitted that the said Misc. Appeal No. 13 of 1985 was dismissed for default on 3.8.1996 as counsel for the appellant appearing before the lower appellate court submitted that the appellant was not turning up and therefore he was unable to say anything. He further submitted that the appellant was ill and therefore he could not instruct his counsel and if the impugned order is not set aside and the said appeal is not re-admitted the appellant will suffer irreparable loss and injury as he has got a good case. Referring to the judgment dated 14.7.1960 passed in T.S. No. 118 of 1958, he further submitted that the father of the appellant was found in possession of the lane involved in present suit, for more than 12 years. Mr. Prakash Chandra, learned counsel appearing for the respondents, on the other hand, supported the impugned order and referred to the earlier conduct of the appellant and submitted that the appellant had been deliberately delaying the disposal of the suit and the appeal. He further submitted that the present suit is not barred by res judicata. 4. It appears that the suit in question being Title Suit No. 18 of 1977 was filed by the predecessor in interest of the respondents against the predecessor in interest of the appellant (hereinafter referred to as the respondents and appellant respectively). 5. The appellant appeared and filed written statement in the suit. The suit was fixed for hearing. As no steps were taken, the suit was fixed for ex parte hearing consecutively for several dates. Ultimately, the suit was heard and decreed ex parte against the appellant on 30.11.1981. The appellant filed a petition under Order 9, Rule 13, read with Section 151 C.P.C. for setting aside the said ex parte decree, which was registered as Misc. Case No. 23 of 1981. After hearing the parties, the said petition was dismissed on 29.4.1985. Against the said order, the appellant filed Misc. Appeal No. 13 of 1985, which was dismissed for default on 3.8.1996 as aforesaid. Case No. 23 of 1981. After hearing the parties, the said petition was dismissed on 29.4.1985. Against the said order, the appellant filed Misc. Appeal No. 13 of 1985, which was dismissed for default on 3.8.1996 as aforesaid. For re-admission of the appeal, an application was filed under Order 41, Rule 19, read with Section 151 C.P.C., which was registered as Misc. Case No. 2 of 1997. After hearing the parties, the said Misc. Case was dismissed on 28.2.2006. Against which, this appeal has been filed. 6. The conduct of the appellant during suit was noticed in the impugned order. It was further noticed that in 'the appeal also, he left pairvi since 1988 and then only on 7.7.1990, he filed attendance but on call no body responded and thereafter no steps were taken, though the order of the Court was shown to the concerned lawyer on several occasions. Ultimately, the appeal was dismissed for default on 3.8.1996. The case of the appellant that he was suffering from diarrhoea on 3.8.1996 was disbelieved. The doctor's certificate was found to be fabricated. Moreover the Son of the appellant was a grown up person who could make pairvi on behalf of the appellant if he was actually ill. Thus, it was as held that the appellant has intention, lily and deliberately delayed and lingered the suit as well as appeal and he failed to establish sufficient cause for such conduct. 7. After going through the records, it is clear that the appellant and his father are guilty of deliberately delaying the suit filed as far back as in the year 1977 and also the appeal filed against the ex parte judgment as far back as in 1985. There is no explanation for such conduct. When I expressed that I am not inclined to interfere with the impugned order, Mr. Kumar appearing for the appellant submitted that the suit involves 1 .45 acres of valuable land on the G.T. Road and the appellant has got good case and if he is not given' a chance to contest the suit, he will suffer irreparable loss and injury. He lastly submitted that in the interest of justice, the prayer of the appellant may be allowed. He further submitted that the appellant is ready to compensate the respondents by costs fixed by this Court. 8. He lastly submitted that in the interest of justice, the prayer of the appellant may be allowed. He further submitted that the appellant is ready to compensate the respondents by costs fixed by this Court. 8. In the circumstances, I am inclined to give one chance to the appellant in the interest of justice, but on payment of cost. This suit was instituted in 1977. The said appeal was filed in the year 1985, As I heard the parties at length on the merits of the impugned order, as well as the order dated 29.4.1985, passed in Misc. Case No. 23 of 1981 filed by the appellant for setting aside the ex part decree, I intend to relegate the parties to the stage of the suit in order to avoid further delay, which may be caused in hearing the appeal etc. etc. 9. Accordingly, the impugned order dated 28.2.2006, passed in Misc. Case No. 2 of 1997 including the order dated 3.8.1996, passed in Misc. Appeal No. 13 of 1985 as well as the order dated 29.4.1985, passed in Misc. Case No. 23 of 1981 including the ex parte judgment and decree dated 30.11.1981 are set aside. The parties are directed to appear before the trial court at 11 A.M. on 1st September, 2009. They are also directed to fully cooperate in early disposal of the suit. The trial court will dispose of the suit expeditiously and 'preferably within 8 months from the date of such appearance of the parties. The trial court will not grant adjournment to any of the parties except in exceptional circumstances. This order is subject to payment of cost of Rs. 25,000/- (Twenty five thousand only) by the appellant to the respondents in the court below by 16th September, 2009, failing which this appeal shall automatically stand dismissed and all the orders, which have been set aside, will stand restored. Appeal disposed of.