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2010 DIGILAW 734 (PAT)

Mahadeo Jha v. Krishna Nandan Singh

2010-04-13

MUNGESHWAR SAHOO

body2010
JUDGEMENT 1. Heard the learned counsel for the parties. 2. This appeal is being disposed of at the stage of admission itself. 3. The appellant has filed this appeal against the order dated 6.9.2000 passed by the learned 6th Additional District Judge, Begusarai, in Title Appeal No.9/87 refusing to restore Title Appeal No.9/87 to its original file which was dismissed for default. 4. The learned counsel for the appellant submitted that the hearing of the appeal was fixed on 10.8.2000. Hajri was also filed. But in the second half because his counsel was not feeling well he left the court premises. Therefore, the case was fixed on 11.8.2000 on which date the said appeal was dismissed because of non-appearance. Thereafter immediately and application under section 151 C.P.C. was filed on 24.8.2000 but since the provision of law was not correct another application under Order 41 rule 19 read with section 151 C.P.C. was filed on 30.8.2000 praying for readmission of the appeal. But the learned court below had rejected the application. 5. Learned counsel for the appellant submitted that the court below without going into the merit of the claim of the appellant that he was prevented by sufficient cause for not appearing when the case was called out for hearing on 11.8.2000 had rejected considering the previous conduct of the parties and on the ground that the appeal is of the year 1987. The learned counsel further submitted that the appeal was dismissed on 11.8.2000 and, therefore, the learned court below should have examined only the question as to whether the appellant was prevented by sufficient cause for not appearing on 11.8.2000 and while considering this previous conduct, of the parties could not have been examined. 6. On the other hand, the learned counsel appearing on behalf of the respondents submitted that because of the delaying tactice of the appellant the matter is pending for such a long period and, therefore, the appeal cannot be allowed. 7. In view of the facts and circumstances of the case, the only consideration is as to whether the impugned order passed by the court below refusing to readmit the title appeal is sustainable in the eye of law. 8. From perusal of the impugned order it appears that the court below while rejecting the application for readmission considered the past conduct of the parties. 8. From perusal of the impugned order it appears that the court below while rejecting the application for readmission considered the past conduct of the parties. There is no consideration as to whether the appellant was prevented by sufficient cause for not appearing on 11.8.2000 when the case was called out for hearing. It further appears from the impugned order that one of the grounds is that the appeal is of the year 1987. In my opinion, on this ground the restoration/readmission cannot be refused. 9. I, therefore, find that the impugned order is unsustainable in the eye of law. In the facts and circumstances of the case, the misc. appeal is allowed, the impugned order is set aside and the Title Appeal No.9 of 1987 is restored/readmit to its original file subject to.payment of cost of Rs.2500/- by the appellant to the respondents in the court below within two months from the date of receipt/ production of a copy of this order failing which this order readmitting the title appeal shall stand recalled automatically. The appellant is further directed to argue the appeal without taking adjournment unnecessarily. In the result, this appeal is allowed.