HAJI ABDUL HAFIZ Vs. NASIR KHAN

JUDGEMENT

(1.) These two second appeals arise from two suits Nos. 1805 of 1980 and 1886 of 1980 of the Court of Munsif City Kanpur which were consolidated and tried together by the IInd Additional Munsif. Kanpur. The appellants who were the defendants in suit No. 1805 of 1980, which was the leading case, were the plaintiffs in other suit No. 1886 of 1980. Second Appeal Number 868 of 1983 arises from the leading case : Suit No. 1805 of 1980 and the Connected Second Appeal No. 1762 of 1983 arises from other suit No. 1886 of 1980.

(2.) By judgment dated 19th August, 1982 the trial Court, decreed suit Number 1805 of 1980 and issued a mandatory injunction to the defendants therein, who are the appellants in this Court, to deliver possession to the plaintiff, who is the respondent in this Court, of the open roof on the second floor within 30 days failing which the plaintiff-respondent would be entitled to obtain possession with costs. A further injunction was issued restraining the defendants-appellants perpetually from ejecting, otherwise than in accordance with the procedure prescribed by law, the plaintiff-respondent from the portion in his tenancy. Suit No. 1886 of 1980 was dismissed. The defendants-appellants appealed to the district Court from both the decrees. Their appeals were dismissed and the decrees of the trial Court were confirmed by the Court of the IInd Additional District Judge, Kanpur. Hence these two second appeals.

(3.) The substantial question of law involved in Second Appeal No. 868 of 1983, as formulated by this Court at the hearing under Order 41, Rule 11 of the Code of Civil Procedure is : "Whether defendants-appellants have had a. reasonable opportunity of leading their evidence and defending the suit.'' The same question is involved mutatis mutandis in Second Appeal No. 1762 of 1983 arising from suit No. 1886 of 1980 where the appellants were the plaintiffs and the respondent was the defendant. The relevant facts are that issues were framed in the leading case on 14th May, 1982 and 5th July, 1982 was fixed for final hearing. On an application by the plaintiff-respondent, the hearing was adjourned to 8th July 1982 on payment of Rs. 10/- as costs. The plaintiff filed an application on 6th July, 1982 for filing certain document. That was ordered to be put up on the date fixed, that is, on 8th July, 1982. On that day the papers filed by the plaintiff were admitted in evidence on payment of Rs. 20/~ as costs, and the defendant was allowed to file papers in rebuttal up to the next date. The issues were also re-cast, and 21st July, 1982 was fixed for the hearing of the suit. The plaintiff-respondent examined himself as P. W. 1, one Abdul Hakim as P. W. 2. and Mohd. Siddiq as P. W. 3 On 21st July, 1982, and closed his evidence. Some application filed by the defendants was rejected. Two papers appear to have been filed by the defendants per list 24-Ga-I and the hearing of the suit was adjourned up to 4th August, 1982 for the defendants' evidence. On 27th July, 1982 an application 56-C2 appears to have been moved on behalf of the plaintiff for keeping the documents under seal on which the trial Court ordered: "Allowed. Steps to be taken within 7 days". There is a note on the margin of the order-sheet under the signature of Mr. B. D. Malviya, Advocate, dated 28th July, 1982, which shows that steps were taken and the documents were kept in seal in his presence. 4th August was declared a holiday and when the case was taken up on 5th August, an application was moved on behalf of the defendants for adjournment of the hearing, on which 10th August, 1982 was fixed for the defendants' evidence. Some application 58-D filed on behalf of the plaintiff was ordered to form part of the file. On 10th August, 1982 the order-sheet records that the case was called out and the two parties appeared. An application 59-D was moved by the defendants for adjournment of the hearing on which it was ordered that the application was allowed for the last time and if the Advocate of the defendants does not appear on that date they should engage another counsel, and that further adjournment will not be allowed. The last sentence of the order says that the suit be put up on 19th August, 1982 for the defendants' evidence. On the margin the notings are: "19-8-1982 "Sd. Nasir Khan Last opportunity" "Sd/- Illegible"R. Tripathi Ad." An application 60-D appears to have been moved by the plaintiff thereafter. The order passed in respect thereof was that the case had been adjourned that day and, therefore, the application was rejected.