Miscellaneous Appeal No. 314 of 2008 · Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Miscellaneous Appeal No.314 of 2008 ====================================================== Amit Kumar, S/o Nand Kishore Prasad, resident of village-Patrahauli, P.S. Bagha, District-West Champaran Versus .... .... Appellant/s 1. Bettiah Estate, Bettiah, P.O. & P.S. Bettiah, District-West Champaran 2. Usha Gupta, D/o Late Nand Kishrore Gupta, W/o Paras Prasad, resident of Mohalla-Rajendra Nagar Road No. 3, Patna-16; at present Acora Drive Scotia, New York, 12302, United States of America 3. Asha Gupta, D/o Late Nand Kishore Gupta, W/o Arbind Kumar, resident of Mohalla-Sonar Patti, Sahebganj, Chhapra; at present Acorn Drive, Scotia, New York, 12302, United States of America 4. Bimla Gupta, Daughter of Late Nand Kishore Gupta, W/o A.K. Gupta, resident of Mohalla-Near Durga Mandir, Ali Nagar, Gorakhpur .... .... Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER 14. 24-06-2013
Legal Reasoning
Heard Mr. Ashok Kumar Keshari for the petitioner and Mr. Binod Kumar for the respondent no. 1. Although respondent nos. 2 to 4 have appeared through counsel Mr. A. Prabhakar but there is no representation today on call. This appeal is directed against the order dated 22.05.2008 passed in Misc. Case No. 5 of 1997 by learned 1st Additional District Judge, Bettiah, West Champaran, whereby the learned court below has been pleased to dismiss the Misc. Case filed for restoration of Title Appeal No. 30 of 1971/17 of 1995/4 of 1996 which had been dismissed for non-compliance of the order dated 10.03.1997. Facts of the matter in brief leading to the present appeal is Patna High Court MA No.314 of 2008 (14) dt.24-06-2013 2 that the respondent no. 1 herein had filed a Title Suit No. 145 of 1961 seeking eviction of the sole defendant, namely, Nand Kishore Prasad who happened to be the father of the appellant and the respondent nos. 2 to 4 as also for a declaration that the defendant was a tenant. The suit was decreed by the trial court under a judgment and decree dated 12.7.1971. Being aggrieved the sole defendant late Nand Kishore Prasad filed Title Appeal No. 30 of 1971 and which appeal was allowed by a judgment and decree passed by the 1st Appellate Court on 28.02.1977 and the judgment and decree of the trial court was set aside. The plaintiff respondent no. 1 herein being aggrieved by the judgment and decree passed by the 1st Appellate Court filed a Second Appeal bearing S.A. No. 309 of 1977. While the Second Appeal was pending before this Court the sole defendant Nand Kishore Prasad died and a substitution petition was filed for bringing on record his heirs and legal representative. The prayer was allowed and the name of Nand Kishore Prasad, the sole defendant was expunged from the appeal and was substituted by his legal heirs who are the appellant and respondent nos. 2 to 4 in this memo of appeal. The order was passed by this Court on 02.11.1981. In the Second Appeal pending before this Court, an application was filed by the defendant-respondents raising objection as to the maintainability Patna High Court MA No.314 of 2008 (14) dt.24-06-2013 3 of the suit in the light of the provisions of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956. In view of the objection so raised, the Second Appeal was disposed of under a judgment and order dated 13.08.1985 remanding the matter back to the 1st Appellate Court to examine the objection raised by the defendant and for demarcation of the property. Although the Second Appeal was allowed under a judgment and order dated 13.08.1985 but it is stated that the records reached the 1st Appellate Court only on 30.03.1995. Upon notice being issued to the parties, the substituted heirs of the sole defendant appeared and the 1st Appellate Court by order passed on 10.3.1997 required the production of the order of this Court under which the substitution had been allowed. As there was some delay on the part of the substituted heirs of the sole defendant in producing the said order, the Title Appeal was dismissed for non- compliance of the order dated 10.3.1997 vide order passed on 31.3.1997. The appellant before the 1st Appellate Court within the prescribed period filed an application for restoration of the appeal giving rise to Misc. Case No. 5 of 1997 and which remained pending for over 10 years and was taken up only on 22.5.2008 when the appellate court taking note of the laches on the part of the appellant in pressing his restoration application, Patna High Court MA No.314 of 2008 (14) dt.24-06-2013 4 dismissed the same for default and hence this appeal. The only issue that is raised by Mr. Keshari before this Court for questioning the order impugned is that when admittedly on 22.5.2008 i.e. the date on which the impugned order was passed, not only the appellant was in attendance but had also pressed the Miscellaneous application then under no circumstance the restoration case could have been dismissed for default. Although Mr. Binod Kumar appearing for the respondent no. 1 tried to read between the lines of the impugned order to justify the impugned order but he also could not justify as to on what legal principles, could the appellate court dismiss the restoration case for default even when the appellant was pressing the same. I have heard learned counsel for the parties and I have perused the materials on record. There is no gainsaying that there has been a delay of over 10 years in pressing the restoration application. But then for all the 10 years neither the respondent no. 1objected to the continuation of the case nor did the appellate court choose to dismiss the same for default. On the contrary, the 1st appellate court kept adjourning the matter. Once the appellate court itself has adjourned the matter for all the 84 times, it certainly cannot take the clock back and dismiss the restoration Patna High Court MA No.314 of 2008 (14) dt.24-06-2013 5 application on the pretext of delay and laches when admittedly on the date when the matter was taken up and dismissed for default, the appellant was pressing his application for restoration. It does not require this Court to refer to any judicial pronouncement to hold that if a party is pressing his application, it can be rejected on any other ground but certainly not on grounds of default. For the reasons aforesaid, the order impugned cannot be upheld and is accordingly set aside. In consequence Misc. Case No. 5 of 1997 stands allowed subject to payment of cost of Rs. 5,000/- (five thousand) to the respondent no. 1 in the court below. The Title Appeal No. 30 of 1971 / 17 of 1995/4 of 1996 is restored to its original file and would proceed to be adjudicated in accordance with law. This application is allowed but without any order as to cost. Since the parties are in attendance they are expected to cooperate in expeditious disposal of the appeal. S.Sb/- (Jyoti Saran, J)