CHHAYA RAI Vs. BINDA PRASAD GUPTA

JUDGEMENT

(1.) The present second appeal under Section 100 of the Code of Civil Procedure has been preferred by the plaintiff Smt. Chhaya Rai, who is suffering a decree passed by the trial Court on 3-9-1998 decreeing the counter-claim of defendant No. 1 Binda Prasad Gupta. The said judgment and decree dated 3-9-1998 passed by the trial Court in Civil Suit No. 8-A/98 has been affirmed by the first appellate Court vide the impugned judgment and decree dated 23-7-2002 in Civil Appeal No. 80-A/2002. The facts of the case, in nutshell, are that the suit land bearing Khasra No. 771 area 1.01 acre situated at Satipara, Ambikapur was purchased by the plaintiff vide sale-deed dated 14-6-1989 for Rs. 30,000/- from Smt. Bhinsari, widow of Manjhidas. Possession of the land was delivered, however, defendant No. 1 tried to interfere with the possession of the plaintiff by digging foundation to construct a wall on the suit land on 31-7-1989 giving rise to filing of the present suit.

(2.) Defendant No. 1 denied the plaint allegations. He claimed ownership over the suit land by virtue of sale-deed dated 26-8-1988 from Manjhidas, son of Budhansai. According to the said defendant, he is in possession of the suit land and, therefore, he, being the owner, is raising construction in accordance with law. Defendant No. l raised a counter-claim under Order 8 Rule 6A of the Code of Civil Procedure for declaration of his ownership and permanent injunction against the plaintiff and her agents not to interfere in his possession.

(3.) The suit was filed on 1-8-1989. Defendant No. 1 filed his written statement along with the counter-claim on 14-9-1992 and the plaintiff filed her written statement to the counter-claim on 14-11-1992 and thereafter issues were framed on 18-12-1992. The case was fixed for recording evidence of the plaintiff's witnesses for the first time on 10-9-1993. Thereafter, on some dates, the plaintiff's witnesses were present and on some dates they were not present. In the meanwhile, written statement was amended by defendant No. l and the plaintiff also amended the plaint. On 8-12-1995, the plaintiff amended the plaint to implead State of Madhya Pradesh (now Chhattisgarh) as a defendant. On 22-12-1995, the matter was adjourned on account of plaintiff's failure to pay process fee for notice to the newly added defendant. On 10-1-1996 also, the matter was adjourned as the plaintiff had failed to pay process fee. The matter was then fixed for 6-2-1996 and on the said date, no one appeared for the plaintiff, however, defendant No. l was represented by his counsel. The plaintiff's counsel informed the Court that he has no instructions on behalf of the plaintiff, therefore, the order-sheet records that no one appeared for the plaintiff on 6-2-1996. The suit was dismissed for want of prosecution, however, later on, the learned trial Court realized that no order has been passed on counter-claim, therefore, the counter claim was taken-up and in the absence of the plaintiff or her counsel, the plaintiff was declared ex parte in the counter-claim and the counter claim was fixed for recording the evidence of defendant No. l on 22-3-1996. On this date, the plaintiff appeared through her counsel but defendant No. 1's witnesses could not be examined. On 15-5-1996 again, defendant No. 1's witnesses could not be examined. The order-sheet of 4-12-1997 records that the plaintiff has not made any effort to get the ex parte order passed against her set aside. She was allowed to participate in further proceedings. The plaintiff, thereafter, moved an interim application on 12-12-1997 for setting aside the ex parte order passed against her in the counter-claim. The said interim application of the plaintiff was rejected by the trial Court on 27-4-1998.