Horil Chaudhary v. Mahendra Chaudhary

Mr.Chandra Kant, Adv Mr. Sudhanshu Prakash, Adv Mr. Navin Kumar, Adv Mr. Ravi Bhashkar, Adv Mr.Ajay Kumar Pandey, Adv Mr. Shyama Rani, Adv ====================================================== CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND MALVIYA ORAL ORDER 15 23-06-2025 Heard learned counsel for the Appellant and learned counsel for the respondent.

The present Miscellaneous Appeal has been filed Patna High Court MA No.883 of 2019(15) dt.23-06-2025 against the order dated 21.09.2019 passed by Additional District and Session Judge 4th Siwan in M.A. Case No. 02 of 2017 whereby and whereunder the learned Trial Court has refused to restore the title appeal no. 99 of 2014 to its original file which has been dismissed due to non prosecution.

Learned counsel for the appellant submits that the record of the Title Appeal Case was transferred from the Court of District Judge to the Court of Additional District and Sessions Judge 4th Siwan on 18.04.2015 by the administrative order of the District Judge where no notice was given to the appellant after transfer of the record. Since from the date of transfer of record no Pairvee was made in the Title Appeal case as the appellant had no knowledge about the date and Court in which the case was transferred. He further submits that learned trial court without considering any of the submissions made by the plaintiff/appellant and without applying judicial mind rejected the petition filed by the appellant vide order dated 21.09.2019.

Learned counsel for the appellant submits that learned Trial Court ought to have considered that the technicalities should not come in the way of doing substantial justice and should have considered that due to lack of knowledge, no any pairvee was made on behalf of the Patna High Court MA No.883 of 2019(15) dt.23-06-2025 plaintiff/appellant and should have considered that there are sufficient cause for non appearance of the appellant in the appeal. Learned counsel further submitted that in the interest of justice, the title appeal is required to restored to its original file and for which he had relied upon the judgements passed by the Hon’ble Supreme Court in the following cases; i. Sarwan Singh Vs. Kishan Singh(dead) through L.Rs. And Ors. BBCJ 2008(1) iv-126 ii. Commissioner Mysore Urban Development Authority Vs. S.S. Sarvesh (2019) 5 SCC 144 iii. State Bank of India Vs. Taril Appliances & Equipment Pvt. Ltd. & Ors AIR 2006 Cal. 121. iv. Annasaheb Virupakasha Bride Vs. Dada Tatoba Patel and Ors. 2005 SCC OnLine Bom

On perusal of record and considering the aforementioned judgments rendered by the Hon’ble Supreme Court and applying the same to the facts of this case, this Court has no hesitation in allowing this appeal and set aside the impugned order dated

The Trial Court should have seen that the first appeal is a valuable right of the appellant and, therefore, the appellant was entitled for an opportunity to prosecute their appeal on merits. If the appellant's advocate did not appear may be for myriad reasons, the Court could have imposed some costs Patna High Court MA No.883 of 2019(15) dt.23-06-2025 on them for restoration of their appeal to compensate the respondent (plaintiff) instead of depriving them of their valuable right to prosecute the appeal on merits. Indeed, dismissal of the appeal in default and dismissal of the appeal on merits makes a difference. The former dismissal is behind the back of the litigant and latter dismissal is after hearing the litigant. The latter is always preferred than the former.

On perusal of the application made by the appellant for recalling of the order and we find that it constitutes a sufficient cause within the meaning of Order 41 Rule 19 of the Code. The application, therefore, deserves to be allowed. However, it is subject to payment of costs of Rs 5,000 payable by the appellant to the respondent (plaintiff). Let the costs be paid before hearing of the appeal before the Appellate Court

In view of the foregoing discussion, the appeal succeeds and is accordingly allowed. The impugned order dated

21.09.2019 is set aside. As a consequence, the application filed by the appellant (MA No. 883 of 2019) is allowed. Title Appeal No. 99 of 2014 is accordingly readmitted for hearing on merits in accordance with law.

The Appellate Court is directed to fix a date for hearing of the appeal on merits uninfluenced by any of Patna High Court MA No.883 of 2019(15) dt.23-06-2025 observations on the merits made by this Court. Let the appeal be heard and disposed of as expeditiously as possible. (Ramesh Chand Malviya, J) Sunnykr/- U