High Court · 2025

Appellant :- Ramkishor Respondent :- Brijlal Counsel for Appellant :- Shanker Lal Pandey,Ram Nandan Srivastava Counsel for Respondent :- Pradeep Kumar Singh,Raghaw Ram Upadhyay Hon'ble Jaspreet Singh,J. Heard Sri Shanker Lal Pandey learned counsel for the appellant and Sri Raghaw Ram Upadhyay learned counsel for the respondent. At the outset, it may be noticed that the petitioner being aggrieved by judgment and decree dated 17.07.2018 passed by the trial Court in Regular Suit no.544 of 2000 had preferred a Regular Civil Appeal No.65 of 2018. The said appeal came to be dismissed though on merits, but in absence of the appellant. In this backdrop, the appellant had preferred an application under Order 41 Rule 19 CPC before the District Judge/ Ambedkarnagar who vide its order dated 09.12.2000 rejected the said application. As a consequence, the appeal which was dismissed in default, it was maintained whereafter the said order dated 09.12.2020 has been assailed by means of the instant appeal. From a perusal of the record, it indicates that in so far as the suit filed by the plaintiff appellant is concerned it was directed against two different persons namely Doodhnath and Brijlal who were real brothers, however, from a perusal of the memo of appeal, it indicates that only Brij lal had contested and upon query being made from the learned counsel for the appellant it was indicated that Doodhnath had already expired while the proceedings were pending before the first appellate court. Sri R.R. Upadhyay learned counsel for the respondent has pointed out that though the statement of the counsel for the appellant that Doodhnath having expired during proceedings before the first appellate court is concerned, the same is not disputed, however, he has pointed out that since Doodhnath had executed a Will in favour of the Brij lal, hence, he is duly represented and moreover, Doodhnath did not have any legal heir. For all the aforesaid reasons, Brij lal is the only contesting respondent. It is in light of the aforesaid submissions and statements given by the learned counsel for the parties, this Court finds that the appeal can be considered and decided on merits without calling for the record as the very short question is involved and as far as the facts leading up to the instant appeal is concerned, they too, are not disputed between the parties. The record would indicate that the plaintiff who is the appellant before this Court instituted Regular Suit no.544 of 2000 seeking a decree of permanent injunction. The said suit came to be dismissed on 17.07.2018. The judgment and decree dated 17.07.2018 was assailed by the plaintiff appellant by filing a regular civil appeal under Section 96 CPC which came to be registered as Appeal no.65 of 2018. The record further indicates that during pendency of the aforesaid first appeal, several opportunities were granted to the appellant who did not argue the appeal as such the A.D.J., Court no.1. Ambedkarnagar noticing the aforesaid fact after hearing learned counsel for the respondent vide its judgment and decree dated 17.09.2020 dismissed the appeal. The contention of learned counsel for the appellant is that in light of the explanation appended to Order 41 Rule 17 CPC in absence of the appellant, the first appellate court could have dismissed the appeal in default, however, it was not authorized to dismiss it on merits. As far as the aforesaid legal proposition is concerned, Sri R.R Upadhyay learned counsel for the respondent has very fairly submitted that he does not dispute the fact, however, he submits that the appellant has been delaying the proceedings and if at all any indulgence is shown to the appellant then he should be put to some terms with a direction for the appellate court to decide the appeal within such time to be fixed by this Court. Considering the aforesaid facts and circumstances and the undisputed proposition of law in terms of Order 41 Rule 17 CPC and its explanation appended, the impugned order dated 17.09.2020 passed by the A.D.J Court no.1 Ambedkarnagar cannot be sustained. There is another reason to set aside the order and that is during the period i.e. when the order dated 17.09.2020 was passed the country was in grip of a pandemic and general directions were issued not to dismiss a case in default but instead the appeal came to be dismissed on merits in absence of the appellant. This being the position clearly the order dated 17.09.2020 is in teeth of the said explanation to the aforesaid provision of Order 41 Rule 17 CPC. Accordingly, the instant appeal is allowed. The judgment and order dated 17.09.2020 passed in Civil Appeal No.65 of 2018 is hereby set aside. The appeal shall stand restored on the Board of the first appellate court where the parties shall appear on 28.07.2025. In case, for some reason, if the said Court is not available or is vacant then liberty will be available to the parties to move an application to the District Judge who shall do the needful to ensure that the appeal is placed before the working court so that the time framed as provided in this order can be complied with. Since indulgence has been shown to the appellant whose conduct has not been appropriate before the first appellate court, accordingly, he shall deposit cost of Rs.5000/- before the first appellate court on or before 28.07.2025. On the deposit of the said sum, it shall be released in favour of the respondent Brij lal. It is further provided that the appellant shall cooperate in early hearing and as shall not seek any unnecessary adjournment, in case, if any party tries to misuse the liberty it will be open for the first appellate court to pass appropriate order including imposition of cost. An endeavor would be made by the first appellate court to decide the appeal after affording full opportunity of hearing but without granting any unnecessary adjournment preferably within a period of three months from the date the parties appear before the first appellate court concerned i.e. 28.07.2025. With the aforesaid, the appeal is allowed. Order Date :- 8.7.2025 Harshita HARSHITA HARSHITA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench

Appellant :- Ramkishor Respondent :- Brijlal Counsel for Appellant :- Shanker Lal Pandey,Ram Nandan Srivastava Counsel for Respondent :- Pradeep Kumar Singh,Raghaw Ram Upadhyay Hon'ble Jaspreet Singh,J. Heard Sri Shanker Lal Pandey learned counsel for the appellant and Sri Raghaw Ram Upadhyay learned counsel for the respondent. At the outset, it may be noticed that the petitioner being aggrieved by judgment and decree dated 17.07.2018 passed by the trial Court in Regular Suit no.544 of 2000 had preferred a Regular Civil Appeal No.65 of 2018. The said appeal came to be dismissed though on merits, but in absence of the appellant. In this backdrop, the appellant had preferred an application under Order 41 Rule 19 CPC before the District Judge/ Ambedkarnagar who vide its order dated 09.12.2000 rejected the said application. As a consequence, the appeal which was dismissed in default, it was maintained whereafter the said order dated 09.12.2020 has been assailed by means of the instant appeal. From a perusal of the record, it indicates that in so far as the suit filed by the plaintiff appellant is concerned it was directed against two different persons namely Doodhnath and Brijlal who were real brothers, however, from a perusal of the memo of appeal, it indicates that only Brij lal had contested and upon query being made from the learned counsel for the appellant it was indicated that Doodhnath had already expired while the proceedings were pending before the first appellate court. Sri R.R. Upadhyay learned counsel for the respondent has pointed out that though the statement of the counsel for the appellant that Doodhnath having expired during proceedings before the first appellate court is concerned, the same is not disputed, however, he has pointed out that since Doodhnath had executed a Will in favour of the Brij lal, hence, he is duly represented and moreover, Doodhnath did not have any legal heir. For all the aforesaid reasons, Brij lal is the only contesting respondent. It is in light of the aforesaid submissions and statements given by the learned counsel for the parties, this Court finds that the appeal can be considered and decided on merits without calling for the record as the very short question is involved and as far as the facts leading up to the instant appeal is concerned, they too, are not disputed between the parties. The record would indicate that the plaintiff who is the appellant before this Court instituted Regular Suit no.544 of 2000 seeking a decree of permanent injunction. The said suit came to be dismissed on 17.07.2018. The judgment and decree dated 17.07.2018 was assailed by the plaintiff appellant by filing a regular civil appeal under Section 96 CPC which came to be registered as Appeal no.65 of 2018. The record further indicates that during pendency of the aforesaid first appeal, several opportunities were granted to the appellant who did not argue the appeal as such the A.D.J., Court no.1. Ambedkarnagar noticing the aforesaid fact after hearing learned counsel for the respondent vide its judgment and decree dated 17.09.2020 dismissed the appeal. The contention of learned counsel for the appellant is that in light of the explanation appended to Order 41 Rule 17 CPC in absence of the appellant, the first appellate court could have dismissed the appeal in default, however, it was not authorized to dismiss it on merits. As far as the aforesaid legal proposition is concerned, Sri R.R Upadhyay learned counsel for the respondent has very fairly submitted that he does not dispute the fact, however, he submits that the appellant has been delaying the proceedings and if at all any indulgence is shown to the appellant then he should be put to some terms with a direction for the appellate court to decide the appeal within such time to be fixed by this Court. Considering the aforesaid facts and circumstances and the undisputed proposition of law in terms of Order 41 Rule 17 CPC and its explanation appended, the impugned order dated 17.09.2020 passed by the A.D.J Court no.1 Ambedkarnagar cannot be sustained. There is another reason to set aside the order and that is during the period i.e. when the order dated 17.09.2020 was passed the country was in grip of a pandemic and general directions were issued not to dismiss a case in default but instead the appeal came to be dismissed on merits in absence of the appellant. This being the position clearly the order dated 17.09.2020 is in teeth of the said explanation to the aforesaid provision of Order 41 Rule 17 CPC. Accordingly, the instant appeal is allowed. The judgment and order dated 17.09.2020 passed in Civil Appeal No.65 of 2018 is hereby set aside. The appeal shall stand restored on the Board of the first appellate court where the parties shall appear on 28.07.2025. In case, for some reason, if the said Court is not available or is vacant then liberty will be available to the parties to move an application to the District Judge who shall do the needful to ensure that the appeal is placed before the working court so that the time framed as provided in this order can be complied with. Since indulgence has been shown to the appellant whose conduct has not been appropriate before the first appellate court, accordingly, he shall deposit cost of Rs.5000/- before the first appellate court on or before 28.07.2025. On the deposit of the said sum, it shall be released in favour of the respondent Brij lal. It is further provided that the appellant shall cooperate in early hearing and as shall not seek any unnecessary adjournment, in case, if any party tries to misuse the liberty it will be open for the first appellate court to pass appropriate order including imposition of cost. An endeavor would be made by the first appellate court to decide the appeal after affording full opportunity of hearing but without granting any unnecessary adjournment preferably within a period of three months from the date the parties appear before the first appellate court concerned i.e. 28.07.2025. With the aforesaid, the appeal is allowed. Order Date :- 8.7.2025 Harshita HARSHITA HARSHITA High Court of Judicature at Allahabad, High Court of Judicature at Allahabad, Lucknow Bench Lucknow Bench