Second Appeal No.283/1999 (Smt.
Neelam Devi versus Anant Pal Singh and another) 27.02.2013 Heard Shri Vivek Rusia, learned counsel for the appellant on the question of admission.
The appellant has filed this appeal being aggrieved by the judgment and decree dated 28.11.1998 passed by the 1st Additional District Judge, Tikamgarh in Civil Appeal No.8-A/95 arising out of an exparte judgment and decree dated 17.11.1994 passed by the Civil Judge, Class-2, Niwari District Tikamgarh in Civil Suit No.42-A/94.
It is stated by the learned counsel for the appellant that the respondent No.1 through his grand-father respondent No.2, had filed a suit for declaring him to be an heir of the deceased Mahendra Verma and for further declaration that he was entitled to all service arrears on account of his death.
The suit was opposed by the appellant by filing a written statement by stating that she was the second wife of the deceased Mahendra Verma and therefore, she was also entitled to share in his retiral benefits.
The fact of marriage between the appellant and the deceased Mahendra Verma was disputed by the respondents.
It is submitted by the learned counsel for the appellant that the said suit came to be decreed exparte on 17.11.1994 on account of non-appearance of the appellant.
Being aggrieved by which the appellant had filed an appeal before the fiRs.appellate court which has also been dismissed, hence this second appeal.
The learned counsel for the appellant submits that the suit filed by the respondents was decreed on a single default committed by the appellant and therefore, substantial question of law arises for adjudication in the present appeal.
I have heard the learned counsel for the appellant at length and also perused the judgment and decree of the fiRs.appellate court dated 28.11.1998.
From a perusal of the same, it appears that the appellate court granted liberty to the appellant to adduce evidence to substantiate the fact that her absence in the suit was bonafide and the delay for filing the appeal was also bonafide.
Pursuant to the opportunity granted by the fiRs.appellate court, the appellant had produced Bhagwandas Verma her father, Ganpat and Kamtua as witnesses and got her own statement recorded in support of her submission wherein it was stated that the advocate engaged by the appellant in the suit did not inform about the listing of the suit or status therein not did he inform that she was required to appear in the suit and on this count she cannot be made to suffer.
The appellant further stated that she was suffering from typhoid for the period 12.11.1994 to 24.3.1995 and on this count also she could not take up the proceedings within time which have resulted in passing the impugned order.
The appellate court on the analysis of the evidence available on record, recorded a conclusion to the effect that the appellant failed to establish that she was not informed by her advocates who were, otherwise, appearing in the suit not did she make any effort to file the affidavit of her Advocates Shri Tripathi and Shri Jain or got their statement recorded.
The appellate court has concluded that in the absence of adducing the best evidence of the advocate in support of her contention, the contention of the appellant in this regard cannot be accepted.
The fiRs.appellate court has also found that the appellant has not filed any medical certificate or any other document to establish that she was suffering from typhoid inspite of the fact that she was given opportunity to do so.
On account of the aforesaid finding recorded by the appellate court on the basis of the evidence available on record, the appeal filed before the appellate court has been dismissed.
I find that the appellate court has duly examined the entire evidence available on record and the finding recorded by the appellate court does not suffer from any perversity or material irregularity not do I find any substantial question of law arising for adjudication in the present appeal.
The appeal being meritless is accordingly dismissed.
(R.S.Jha) Judge msp