ARCHANA KUMAR Vs. PURNENDU

JUDGEMENT

(1.) THIS appeal is filed against the order refusing to set -aside the ex -parte judgment and decree passed on 1.11.85 in Civil Suit No. 17 -A/78. The defendant -appellant No. 1 Smt. Archana Kumar and the plaintiff -respondent Purnendu Prakash Mukherjee are sister and brother. The appellant No.2 Surendra Nath Kumar is husband of appellant No. 1. The suit was filed by the plaintiff against his mother Smt. Suchifra Mukherjee, who died during the pendency of the suit on 15.9.84.

(2.) NARENDRA Nath Mukherjee was the original holder of the suit property, who died on 15.11.44 intestate leaving behind his widow, son and a daughter. The suit property is known as bungalow nos. 134.to 135 -1/A, Napier Town, Jabalpur. The deceased are Hindus governed by Dayabhaga School of Hindu Law. In 1966, Suchitra Mukherjee got her name mutated in Municipal records.

(3.) ON these pleadings, the suit was contested. The suit was instituted on 14.11.77. It was fixed for various proceedings and some relevant dates are given. Despite several hearings, ultimately the suit was fixed for recording the evidence on 13.4.82. At the request of the defendants i.e. the present appellants the suit was adjourned to 24.3.83 and thereafter on 21.6.83. The evidence, however, started on 23.6.83. The same could not be completed and was adjourned to 19.8.83, on payment of costs by defendants. The same was adjourned to 5.4.84 again and thereafter adjourned to 21.4.84 at the request of the defendants. On 21.2.1985 the case was fixed for cross -examination of the plaintiff. The same was adjourned for cross -examination by defendant No.1 and the date was fixed for 3.8.85, in the earlier part of the day the suit was adjourned and was taken up at 2.30 p.m. Shri Pethia, learned counsel for the defendants, appeared and the same was adjourned on payment of costs for recording evidence on 7.10.85. The dates material for deciding this matter are 3.8.85 and 7.10.85. It is alleged that Shri Pethia instead of recording the correct date i.e. 7.10.85 recorded 20.11.85 in his diary and the same was communicated to the defendants.