OM PRAKASH Vs. NEW OKHALA INDUSTRIAL DEVELOPMENT AUTHORITY

JUDGEMENT

(1.) Present second appeal has been filed against the judgment and decree dated 30.8.2007 passed by the Additional District Judge (II), Gautambudh Nagar in Civil Appeal No. 8 of 2006 (Om Prakash and Anr. v. New Okhala Industrial Development Authority and Ors.), arising out of the Original Suit No. 901 of 1993.

(2.) Brief background of the case is that plaintiffs-appellants filed suit for permanent injunction, registered as Original Suit No. 901 of 1993 in the court of Civil Judge (Senior Division), Ghaziabad contending therein that plaintiffs-appellants are owner in possession of the land in dispute and have got their construction thereon. In the said suit, New Okhala Industrial Development Authority filed written statement and disputed the claim of plaintiffs-appellants. In the said case, evidence was led from both the sides and thereafter Original Suit No. 901 of 1993 was dismissed by the trial court vide judgement and decree dated 4.4.2006. Aggrieved against the said judgment and decree, plaintiffs-appellants filed Civil Appeal No. 8 of 2006 (Om Prakash and Ors. v. New Okhala Industrial Development Authority and Ors.). Appeal in question was admitted on 21.4.2006 and judgment and decree passed by lower court was stayed. Thereafter, matter was taken up on different dates and was adjourned on one ground or other. On 16.8.2007 matter was taken up, and on the said date, arguments on behalf of the defendants-respondents were heard and for hearing of arguments to be advanced on behalf of the plaintiffs-appellants 17.8.2007 was the date fixed. On 17.8.2007 no one has appeared when the case has been called out on behalf of the plaintiffs-appellants to argue the matter, and then matter was adjourned and date was fixed for 22.8.2007. On 22.8.2007 case in question was called out, no one appeared on behalf of appellant and on account of court being over burdened, judgment in question could not be delivered. On 30.8.2007 matter was taken up and when no one had entered appearance then judgment was delivered on merit and decree was prepared on 5.9.2007. Thereafter an application was moved under Order 41 Rule 19 C.P.C. for recalling of the said order and same was also rejected and order passed, has been upheld, at this juncture present second appeal has been filed.

(3.) On presentation of second appeal in question, record of the court below was summoned and thereafter record in question has been received, and with the consent of the parties, present second appeal has been taken up for final hearing/disposal. Sri Faujdar Rai, advocate, learned Counsel for the plaintiff-appellant contended with vehemence that under the provision of Order 41 Rule 17 of C.P.C. when on the date fixed for hearing, appellant has not appeared when the appeal in question was called out for hearing, then at the said juncture, court hearing the appeal has certainly been empowered to pass order dismissing the appeal but said appeal can be dismissed for want of prosecution and cannot be dismissed on merit, and as such in the present case appellate court has clearly transgressed and over stepped its jurisdiction in deciding the appeal on merits and as such judgment and decree passed by the lower appellate court below is liable to be set aside.