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2012 DIGILAW 887 (PAT)

Radha Kant Kuer v. Bishwanath Kuer

2012-06-28

AJAY KUMAR TRIPATHI

body2012
Oral Judgment Appellants are aggrieved by the decision of the 4th Additional District Judge, Motihari in the district of East Champaran, passed in Title Appeal Nos. 90/161 of 1992/2004. By virtue of this Order, dated 15.12.2004, appeal filed on behalf of respondents against the ex-parte Judgment, dated 12.1.1988, passed by Shri C.D. Jha "Vikal", Sub-Judge-5, Motihari in Title Suit Nos. 465/84 of 1986/87 was set aside and the matter remanded back, giving opportunity to the defendant to file his written statement and contest the suit. 2. Appeal came to be filed, challenging the said decision and many a submissions have been made in the memo of appeal to show that such an order is required to be interfered with and the order of remand ought not to have been passed by the Appellate Court, because it gives not only an undue advantage to the defendant, but also a premium for his inaction, before the trial court in defending the suit promptly. 3. Suit was originally filed by the plaintiff-appellants before the Court of Sub-Judge, Motihari, which was registered as Title Suit No. 465 of 1986. The relief prayed for in the plaint was for declaration that they have acquired title of the suit land described in schedule-lot the plaint on the basis of four registered sale-deeds, executed by the defendant on 22.12.1983 as also for confirmation of possession and restraining the defendant from interfering with the possession of the suit land. In the alternative even a prayer for recovery of possession was made. 4. The Court is not required to take note of the details of the averments made in the plaint behind the filing of the said Title Suit, but it seems that after registration of the said suit, certain steps had been taken by the trial court. But there is nothing to reflect that anything tangible in terms of trial of the suit as such had been taken. No doubt the respondents/the defendants did file power on 25.4.1987 in the matter, but soon thereafter on 19.8.1987. the records of the case stood transferred to Sub-Judge-5, Motihari for disposal on the orders of the learned District Judge. It is the stand of the appellants that thereafter the defendant took no steps and no option was left for the SubJudge-5, but to proceed ex-parte and decree the suit. 5. the records of the case stood transferred to Sub-Judge-5, Motihari for disposal on the orders of the learned District Judge. It is the stand of the appellants that thereafter the defendant took no steps and no option was left for the SubJudge-5, but to proceed ex-parte and decree the suit. 5. A miscellaneous case was also filed which stood dismissed therefore the Title Appeal Nos. 90/161 of 1992/2004. 6. According to the counsel for the appellants no plea has been taken either in the memo of appeal filed before the appellate court nor was any evidence tendered to establish that there were genuine/bona fide reasons for non-participation of the defendant in the suit and it was not a deliberate effort to delay or scuttle the suit. The attention of the Court has been drawn even to the memo of appeal, so filed, which was perused by this Court as the original records of the Court below are readily available on summon by this Court. 7. Counsel also submits that in a situation of such kind a Bench of Orissa High Court in the case of Surendra Mohapatra vs. Annapurna Mohapatra, reported in AIR 1969 Orissa page 261, has held that the defendant cannot be relegated to the original position, but will have to defend his interest from the point of view from the stage where it was on 22.2.1967, meaning thereby that he would be barred from filing any written statement, but he could cross-examine witnesses of the plaintiff and could give evidence on his own discretion. Such a proposition is said to be supported and based on a decision of the Supreme Court rendered in the case of Arjun Singh vs. Mohendra Kumar, reported in AIR 1964 Supreme Court 993. 8. Learned counsel representing the respondents in the present case submits that the appellate court has taken note of the details of the litigation, the nature of relief sought for in the title suit, the various steps which came to be taken in. the suit by the trial court and finally the exparte order passed on 12.1.1988. The details of the adjournments and what was .required to be done in the matter is available from paragraph 7 of the main judgment. the suit by the trial court and finally the exparte order passed on 12.1.1988. The details of the adjournments and what was .required to be done in the matter is available from paragraph 7 of the main judgment. No doubt certain dates do indicate that time was fixed for filing written statement, but on 5.1.1988 without recording that the matter will be finally taken exparte or a notice being given to the defendant, the matter was taken up ex-parte and suit decreed on whatever little evidence or material tendered by the plaintiffs before the trial court. Available right to defend the interest of the litigant and to fairly contest the suit, therefore, was denied to the defendant, according to the counsel and it is bound to create prejudice all his life. 9. The factual aspect talked about in paragraph 7 of the impugned order or judgment is reflected from perusal of the order-sheet of the trial court. No doubt, there was certain amount of urgency involved in adjudications of such issues or to complete the proceeding at the shortest possible time, but the object of justice delivery is not to conclude a matter in one form or the other, but to give a fair opportunity to the litigants to place their case before the Court of law for a fair adjudication. It is not that every assertion of a right or a declaration sought for by a litigant is based on true and correct facts. This is where the role of a Court or a Judge comes into play and dispute has to be decided after the evidence and materials are allowed to be placed on behalf of the contesting parties. 10. There can never be a fair adjudication in absence of the either side, if he has not been given an opportunity on the basis of some technicality or the other. Any declaration made in favour of the plaintiff will remain a suspect in the eye of the litigant and may be even the superior court. 11. There is no clear cut evidence available from the record that after the transfer of the case from the original trial court to the Court of Sub-Judge-5, any notice/information was given to the litigant• or his counsel. 11. There is no clear cut evidence available from the record that after the transfer of the case from the original trial court to the Court of Sub-Judge-5, any notice/information was given to the litigant• or his counsel. There does not seem to be any effort made by the transferred court to issue any fresh notice to the defendant in this case, especially when the case stood transferred to a new court, as there cannot be a unilateral knowledge of such transfer, when thousands and thousands of cases are pending before various courts for adjudication. 12. Obviously, all these aspects have been noted by the appellate court while passing the order so impugned in this miscellaneous appeal. In the opinion of this court, the remand order was required, especially keeping in mind the nature of the suit so filed and factual aspect so pleaded in the plaint. A regular contest is required before a declaration could be made in favour of the plaintiff. The correct picture cannot emerge on the basis of exparte trial or the evidence, which may have been brought on record by the plaintiffs alone. 13. Coming to the ratio of the decision, which have been cited at the bar on behalf of the appellants, which is the case of Surendra Mohaptra (supra), the Court can only say that the said decision has been passed not as a ratio of universal application. The factual matrix of the matter is such that the appeal could be allowed and matter remanded to the trial court looking at the stage, where the trial had reached and a categorical finding with regard to the conduct of the defendant. It all depends from case to case and it cannot be said that in all cases, defendant should be barred from filing a written statement or bringing proper evidence to defend his interest before the trial court. 14. In the present case, it will be another travesty of justice, if the defendant is barred from filing a written statement and leading evidence before the trial court, as any conditional remand otherwise would be illusory. 15. The Court, however, surely cannot overlook the fact that a litigation of the kind has been going on for a long period of time and the suit relates to the 'year 1984. 15. The Court, however, surely cannot overlook the fact that a litigation of the kind has been going on for a long period of time and the suit relates to the 'year 1984. No interference with the imposition of cost upon the defendant, therefore, would be required to be made in the present order. But, in addition to that the court would like to fix a time-frame for the trial and completion of the present suit by the trial court. 16. Let the original records of the case be remitted back to the trial court by the office immediately, not later than two weeks from today. The trial court on receipt of the records will fix a date for filing written statement on behalf of the defendant within two weeks after a copy of this order is produced by the appellants before the trial court. On receipt of the record, no separate notice or plea of notice or evasive kind of action will be taken by the defendant in this regard, as the order is being passed in open court in presence of their counsel in this matter. The issues will be framed on the basis of the written statement and the plaint within three weeks of filing of the written statement. The relevant memo of evidence to be pressed into service must also be placed in the meanwhile and the trial of the case will be expedited and concluded preferably within a period of six months, with a clear directive to the trial court that no adjournments of any kind shall be granted to either of the parties, much less on the non-availability of counsel for' one reason or the other. 17. The appeal is dismissed. The order, passed in Title Appeal Nos. 90/161 of 1992/2004 does not require any interference, excep, to the extent with regard to the directive, which has been issued to the trial court in this regard.