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2010 DIGILAW 1229 (PAT)

Ramji Pathak v. Lakhraj Dubey

2010-05-11

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel for the appellant under Order 41 rule 11 C.P.C. 2. Notices were issued to the respondents but in spite of the service of notice nobody appeared. 3. This Misc. Appeal has been filed by the appellant against the order dated 23.12.2002 passed by the learned Fast Track CourMst, Siwan, in Misc. Case No. 48 of 1994 whereby the court below rejected the Misc. Case and refused to readmit the title appeal. 4. It appears that the father of the appellant, namely, Raghunath Pathak, alongwith others filed Title Appeal No. 73 of 1970 against the judgment and decree passed in Title Suit No. 281 of 1963. The said suit was filed by the respondent no. 1. 5. During the pendency of the appeal the father of the present appellant died. It further appears that the appellant was substituted. It further appears that by terms of order dated 30.4.1985 the learned lower appellate Court, i.e. the then 4th Additional Subordinate Judge, Siwan dismissed the appeal. 6. Thereafter in the year 1994 this Misc. Case was filed by Ramji Pathak, the present appellant, alleging that he was mentally disturbed and was under treatment at Kankey Hospital. In his absence the other appellant colluded with the respondents and got the title appeal dismissed. When the appellant was cured from mental disease he filed application for re-admission of the title appeal. 7. The learned counsel for the appellant submitted that in view of the above facts and circumstances of the case the learned court below should have re-admitted the appeal and should have heard on merit. The learned counsel further submitted that in support of his case the appellant had adduced evidence but the learned court below has wrongly appreciated the evidence. 8. As stated earlier despite service of notice nobody appeared. 9. It is admitted fact that the father of the appellant filed the aforesaid Title Appeal No. 73 of 1970 alongwith his brother and others. From perusal of the impugned order it appears that the present appellant, Ramji Pathak, was substituted as appellant in place of his. father. The contention of the appellant is that the other appellant cofluded with the respondents and got the appeal dismissed. The other contention is that he was suffering from insanity as such he was not knowing the correct position. father. The contention of the appellant is that the other appellant cofluded with the respondents and got the appeal dismissed. The other contention is that he was suffering from insanity as such he was not knowing the correct position. It is stated that he was suffering from insanity from 1978 to 1996. 10. From perusal of the lower court records it appears that the appellant has examined five witnesses. Out of them A.Ws. 1 to 4 are formal in nature and have proved the Ext.-1 to Ext.-5/4. 11. Ext.-1 is the certificate dated 5.4.1989. Likewise the other Exts. all relate to the treatment of the appellant in Kankey Hospital, Ranchi. A.W. 5 is the appellant himself. He has supported his case that he was in mental asylum. So far as this contention of the appellant is concerned it may be true that he was under treatment but there is no evidence to show that in fact the other appellants colluded with the respondents and got the appeal dismissed. Admittedly the father of the appellant with the uncles and other relatives of the present appellant and on the (Sicdeath?) of his father the present appellant was substituted in place of his father and, therefore, the interest of the appellant was also sufficiently represented by the other appellants. The case of all the appellants was same. Now, therefore, the appellant cannot say that in his absence the appeal cannot be dismissed. Moreover, the appeal was dismissed in 1985 in presence of the other appellants. After such a long period, i.e., about 9 years ,only on so-called allegation that the other appellants colluded with the respondents the appeal cannot be restored. 12. Considering the above facts and circumstances of the case I find no illegality in the impugned order passed by the learned court below and, therefore, there is no reason to interfere with it. Accordingly, I find no merit in this Misc. Appeal and, therefore, this Misc. Appeal is dismissed.