LAKHMA Vs. JANKI BAI SAHU

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in this second appeal preferred by the defendants is as under:- "Whether both the Courts below were justified in decreeing the suit ex parte without providing opportunity of hearing to the appellants ?" [For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

(2.) Suit filed by the plaintiff was dismissed ex-parte by the trial Court on 10/4/2000, against which, respondent No.1/plaintiff preferred first appeal along with application for condonation of delay. The first appellate Court by order dtd. 15/7/2003 condoned the delay in filing first appeal and fixed the case for final hearing on 23/8/2003 and on 23/8/2003 again the matter was fixed for 6/10/2003 and on that day, it was re-fixed for 3/11/2003. On 3/11/2003 the matter heard ex-parte and the first appellate Court delivered the judgment on 13/11/2003 by allowing the appeal, against which, the appellants/defendants preferred this second appeal under Sec. 100 of the CPC, in which substantial question of law has been formulated by this Court, which has been set-out in the opening paragraph of this judgment.

(3.) Mr.Ram Kumar Tiwari, learned counsel for the appellants/defendants, would submit that the first appellate Court has only issued notices on application for condonation of delay and after condoning delay, straightway allowed the appeal and neither fixed the case for hearing the appeal nor issued notice to the appellants/defendants, as such, the procedure adopted by the first appellate Court is unknown to law and is violative of Rule 12 and Rule 14 of Order 41 of the CPC, as such, the judgment and decree passed by the first appellate Court deserves to be set aside.