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2012 DIGILAW 39 (PAT)

Ramphal Hazra v. Kariman Hazra

2012-01-10

SHAILESH KUMAR SINHA

body2012
Judgment Per: Hon'bIe Mr. Justice Shailesh Kumat Sinha The present appeal is directed against the order dated 21.7.2009 passed in Mis-cellaneous Case No.1 of 2008 by the Additional District Judge, Fast Track Court-IV, West Champaran, Bettiah, whereby the application filed by the appellants under Order Xli Rule 19 of the Code of Civil Procedure for re-admission of Title Appeal No3 of 2007, on contest, was dismissed. 2. In this appeal, lower court records were called for. However, on perusal of the records it transpired that the records of Miscellaneous Case No. 1 of 2008 arising out of Miscellaneous Appeal No. 37 of 2005 were sent by the court below. With consent of the parties, this appeal is being disposed of in absence of the lower court records of said Miscellaneous Case No. 1 of 2008 arising out of Title Appeal No3 of 2007. 3. Learned counsel appearing for the appellants has produced xerox copy of the original petition in Miscellaneous Case No. 1 of 2008 filed in the court below. Learned counsel for the respondents has also produced the certified copy of the rejoinder filed on behalf of the respondents in the court below in opposition to the said miscellaneous case. 4. It is submitted by the learned counsel for the appellants that the appellants were not knowing the progress of the appeal and as such, on inspection of the records on 13.3.2008, the appellants could learn that the aforesaid title appeal was dismissed on 22nd of February, 2008. It is further submitted that the appellants were regularly attending the appeal. However, for want of correct information with regard to the progress of the aforesaid appeal, the appellants could not take appropriate steps or appear in the court when the appeal was called on for hearing. In the above circumstances, prayer has been made to re-admit the aforesaid title appeal so that the same could be heard and disposed of on merits. 5. Mr. Ashok Kumar Choudhary, learned counsel appearing for the respondents, on the other hand, submits that the appellants were not correct in making out a plea that they had no information with regard to the progress of the appeal and they learnt about the dismissal of the said appeal only when they made an inspection of the records on 13.3.2008. Mr. Ashok Kumar Choudhary, learned counsel appearing for the respondents, on the other hand, submits that the appellants were not correct in making out a plea that they had no information with regard to the progress of the appeal and they learnt about the dismissal of the said appeal only when they made an inspection of the records on 13.3.2008. It is submitted that the respondents had categorically stated in opposition to the readmission of the appeal that the records of the appeal were seen by the learned counsel for the appellants in the court below on 1 st of February, 2008 on the direction of the court below. The next date in the said appeal was 15th of February, 2008 when nobody appeared on behalf of the appellants. However, the appeal was adjourned and posted for hearing on 22nd of February, 2008 and on the same date also although respondents were present, but nobody appeared on behalf of the appellants when the appeal was called on for hearing. The statements made in the rejoinder were not controverted. In other words, it is submitted that the ground advanced on behalf of the appellants for readmission of the appeal is not bona fide and incorrect as well and no sufficient cause has been shown for not appearing in the court below on the date when the appeal was called on for hearing on 22nd of February, 2008. 6. In reply, learned counsel for the appellants submits that the appellants had no information as to whether the records were seen by their Advocate in the court below on 1st February, 2008 and also on the next date fixed in the appeal. Even if there may be some mistake on the part of the counsel, the appellants should not be made to suffer for the inaction on the part of the Counsel. 7. Even if there may be some mistake on the part of the counsel, the appellants should not be made to suffer for the inaction on the part of the Counsel. 7. Considering the rival submissions of the parties and also upon perusal of the order under appeal as well as the averments made in Miscellaneous Case No. 1 of 2008 as also its rejoinder, certified copy of which has been produced by the learned counsel for the respondents, it would appear that the appeal on being transferred to the court of the 5th Additional District Judge, Bettiah, the transferee court got the records of the said title appeal seen by the learned Advocate of the appellants in the court below, namely, Shri Binay Chandra Jha, who had seen the records and made the endorsement on 1.2.2008. The next date fixed was 15th February, 2008. However, no one appeared on behalf of the appellant and subsequently, the appeal was posted for hearing on 22nd of February, 2008 and on the said date also nobody appeared. Consequently, the appeal was dismissed in default. 8. The ground advanced on behalf of the appellants for re-admission of the appeal is that the records were inspected on. 13.3.2008 and then it was learnt that the appeal stood dismissed on 22nd of February, 2008. The miscellaneous case was filed through the same Counsel on 15.3.2008. In the opinion of the court, there appears to be some laches on the part of the appellants in prosecuting the appeal. However, on account of such inaction Oil the part of the Counsel, the appellants may not be allowed to suffer. Notwithstanding the above, disposal of the aforesaid Title Appeal No. 3 of 2007 was got delayed on account of the inaction on the part of the appellants or their Counsel. 9. This Court, considering the entire facts and circumstances of the case, is of view that let aforesaid Title Appeal No.3 of 2007 be re-admitted for final hearing on merits. larder accordingly, subject to payment of cost of Rs. 3,500/- (Three thousand five hundred) to be deposited in the court below. The appellants as also appearing respondents are directed to appear in the court below i.e., the 5th Additional District Judge, West Champa ran, Bettiah on 13th of February, 2012, when a fresh date of hearing of the appeal be fixed by the court below. 3,500/- (Three thousand five hundred) to be deposited in the court below. The appellants as also appearing respondents are directed to appear in the court below i.e., the 5th Additional District Judge, West Champa ran, Bettiah on 13th of February, 2012, when a fresh date of hearing of the appeal be fixed by the court below. The court below is directed to finally dispose of the appeal expeditiously, preferably within a period of three months on appearance of the parties. The appellants shall appear alongwith the Challan showing the payment of the aforesaid cost and file the same in the court below. 10. Learned counsel for the appellants as also the respondents undertake to inform the respective parties to ensure their appearance in person or through their Counsel on the aforesaid •date i.e. 13th of February, 2012. 11. In the result, the impugned order is set aside. The appeal is, thus, allowed to the extent indicated above.