Sk. NazmuddIn Vs. Sk. NazmuddIn and ors.

Sk. Nazmuddin vs Sk. NazmuddIn and ors.

Type Court Judgment Court Patna Decided Jan 30, 1998

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Citation: sooperkanoon.com/127354
Court: Patna High Court
Judge: Gurusharan Sharma, J.
Decided On: Jan 30, 1998
Case Number: Appeal from Original Order No. 98 of 1992
Subject: ;Civil

Case Summary

AI-generated summary - not the official court judgment text.

Practice and Procedure - Dismissal of appeal for default of Counsel--Civil Procedure Code, 1908, Order XLI, Rule 19--Application for restoration--Decided on fact of absence of appellant--In appeal presence of appellant is not necessary unless there Is any specific direction of Court--In the instant case, Counsel for...

Key legal issue: ;Civil

Parties & Advocates

Appellant / Petitioner

Sk. Nazmuddin

Respondent

Sk. NazmuddIn and ors.

Excerpt

practice and procedure - dismissal of appeal for default of counsel--civil procedure code, 1908, order xli, rule 19--application for restoration--decided on fact of absence of appellant--in appeal presence of appellant is not necessary unless there is any specific direction of court--in the instant case, counsel for appellant failed to appear--thus, litigant (appellant) be not punished for default of counsel--appeal restored. - .....nobody appeared on behalf of the appellant and as such the appeal was dismissed for non-prosecution. it appears that on 21.9.1972 on behalf of the appellant, a petition under order xli, rule 19 of the code of civil procedure was filed for readmission of the appeal, which was registered as misc. case no. 7 of 1972.2. on behalf of the appellant, it was said that the pairvikar of the appeal was ill and as such he did not present himself on 25.8.1972, the date fixed for hearing of the appeal.3. i find that the entire misc. proceeding under order xli rule 19 of the code proceeded as if it was a default on the part of the appellant, on whose behalf neither any hazri (pairvi) was filed nor the appellant herself was present, when the case was called out. in my view in appeal there was no requirement of either filing hazri on the date fixed nor physical presence of the appellant, unless there was specific direction of the court to the appellant to be present in person.4. in such circumstances, it was the default on the part of the counsel for the appellant that on call the appellant remained unrepresented and as a result thereof the appeal was dismissed for default. i think for the default of counsel the litigant may not be punished. in such circumstances, i set aside the impugned order and readmit title appeal no. 30 of 1967 with a direction to the court concerned to dispose it of within four months. the parties herein are directed to appear on 18.5.1998.5. the court will fix a firm date for hearing of the appeal in presence of the parties. in the meantime lower court records may be sent down forthwith by special messenger, costs whereof must be deposited by the appellant by 4.5.1998.

Full Judgment

Gurusharan Sharma, J.

1. The plaintiff-appellant lost Title Suit No. 14 of 1962/12 of 1963 and thereafter filed Title Appeal No. 30 of 1967, which was pursued deligently till it was transferred by order dated 4.7.1972 from the Court of District Judge, Godda to the Court of Additional District Judge. The records of the appeal was received in the Court of Additional District Judge on 25.7.1972 and the next date of hearing of the appeal was fixed on 25.8.1972. On 25.8.1972 the appeal was called out, but nobody appeared on behalf of the appellant and as such the appeal was dismissed for non-prosecution. It appears that on 21.9.1972 on behalf of the appellant, a petition under Order XLI, Rule 19 of the Code of Civil Procedure was filed for readmission of the appeal, which was registered as Misc. Case No. 7 of 1972.

2. On behalf of the appellant, it was said that the pairvikar of the appeal was ill and as such he did not present himself on 25.8.1972, the date fixed for hearing of the appeal.

3. I find that the entire Misc. proceeding under Order XLI Rule 19 of the Code proceeded as if it was a default on the part of the appellant, on whose behalf neither any Hazri (pairvi) was filed nor the appellant herself was present, when the case was called out. In my view in appeal there was no requirement of either filing Hazri on the date fixed nor physical presence of the appellant, unless there was specific direction of the Court to the appellant to be present in person.

4. In such circumstances, it was the default on the part of the Counsel for the appellant that on call the appellant remained unrepresented and as a result thereof the appeal was dismissed for default. I think for the default of Counsel the litigant may not be punished. In such circumstances, I set aside the impugned order and readmit Title Appeal No. 30 of 1967 with a direction to the Court concerned to dispose it of within four months. The parties herein are directed to appear on 18.5.1998.

5. The Court will fix a firm date for hearing of the appeal in presence of the parties. In the meantime Lower Court records may be sent down forthwith by special messenger, costs whereof must be deposited by the appellant by 4.5.1998.

Same Court & Year Patna · 1998 Same Parties Sk. Nazmuddin vs Sk. NazmuddIn and ors. Same Subject ;Civil Same Judge Gurusharan Sharma, J.

;Civil