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2012 DIGILAW 810 (JHR)

Nayan Munda v. Sukro Devi

2012-06-15

JAYA ROY

body2012
ORDER Heard the parties. The appellants have filed the instant appeal against order dated 29.01.2007 passed Misc. Case No. 7 of 2005 by Additional Judicial Commissioner No.1, Khunti, rejecting the petition filed by the appellants/ petitioner for re-admitting/restoring the Title Appeal No. 5 of 2000 which was dismissed on 23.9.2005 for not taking proper steps to send the notices to the substituted proforma respondents nos. 27(a) to 27(d). 2. The case in brief is that the plaintiffs-respondents filed a Title Suit No. 23 of 1992 for adjudication of the right, title, interest and possession of the suit lands and further to restrain the defendant permanently from interfering with the possession of the plaintiff over the lands in question. The said suit was decreed in favour of the plaintiffs -respondents. Thereafter, the present appellants filed the Title Appeal No. 5 of 2000 against the Judgment and decree passed in the aforesaid Title Suit No. 23 of 1992. After the institution of the said Title Appeal, the proforma respondents died in due course and as such the appellants were directed to take necessary steps for notice to the substituted Proforma respondents No. 27(a) to 27(d) in the said Title Appeal. Thereafter in compliance of the said order though the requisite filed by the Advocate Clerk but by bonafide mistake the copy of the Memo of appeal was not filed and accordingly the said Title Appeal was dismissed for not compliance of the order as stated above. Thereafter, the appellants filed a Miscellaneous Case i.e. Misc Case No. 7 of 2005 for re-admitting/restoration of the said Title Appeal under order 41 Rule 19 of the C.P.C. After hearing the parties, the learned A.J.C. Ist, Khunti, rejected the said Miscellaneous Case No. 7 of 2005 by his order dated 29.1.2007, hence this appeal. 2 M.A. No 77 of 2007 3. The learned counsel for the appellants, has submitted that the appellants were not negligent. The said Title Appeal has been dismissed only due to the reason that by bonafide mistake of the Advocate's Clerk who could not file the Memo of Appeal according to the order given in the said Title Appeal No. 5 of 2000. It is also submitted that if the title appeal is not re-admitted/restore, the appellants will suffer irreparable loss and injury. 4. It is also submitted that if the title appeal is not re-admitted/restore, the appellants will suffer irreparable loss and injury. 4. The learned counsel for the appellants, has further submitted that there is no latches or negligence on the part of the appellants. It is there is any latches i.e. of his counsel or the Advocate's clerk for which the present appellant cannot be blamed or allowed to suffer. 5. The learned counsel of the respondent has vehemently opposed and submitted that the copy of the Memo of appeal was not filed with the requisites for sending notices to the substituted respondents deliberately. 6. Considering the fact and circumstances of the case and considering the materials on record and further more, the Hon'ble Apex Court has held in numbers of cases again and again that party should not suffer for the inaction, deliberate omission or misdemeanour of his lawyer or his agent, in my opinion, for the interest of justice the aforesaid Title Appeal should be readmitted. Accordingly, I allow the instant appeal subject to the payment of cost of Rs. 2,000/-to the counsel appearing for the respondent Mr. H.K. Mahato within a period of one month from the date of this order and set aside the order dated 29.01.2007 passed Misc. Case No. 7 of 2005 and the order dated 23.9.2005 passed in T.A. No.5 of 2000 by the Addl. J.C. No.I, Khunti. The counsel for the appellants will file the receipt with regard to the payment of the cost within the said period. 7. The Court below is directed to conclude the hearing of the appeal i.e. T.A. No. 05 of 2000 within a period of six months from the date of receipt of the lower court records. 8. The office is directed to send the entire lower court records to the court below after the filing of the receipt with regard to payment of cost filed by the counsel appearing for the appellants in the case. This appeal is disposed with the aforesaid directions.