JAGANNATH TRIVEDI Vs. NILIMA DUTTA GUPTA

JUDGEMENT

(1.) This second appeal is in connection with Title Suit No. 286 of 1978. When admitting the appeal under Order 41, Rule 11 of the Code of Civil Procedure on 1.4.93 the Hon'ble Division Bench passed the following order:

(2.) It appears from the office records that on 2.11.95 the appeal was made ready as regards service. It also appears from office note dated 3.2.97 that one learned advocate entered appearance on 4.11.95 by filing vocalatnama. The said learned advocate appearing for the respondents also deposited usual paper book cost on 18.12.95. Lower Courts records arrived and examined but from the office note dated 17.10.2001, it appears that one postal receipt being exhibit No.7 was missing. On 18.10.2001, Justice Pranab Kumar Chattopadhyay passed an order directing the department to find out whether this postal receipt is made available or not and His Lordship also observed that hearing can be done on the basis of the available records devoid of this postal receipt which is exhibit No.7. This is a suit for eviction and the suit is a very old one and the appellant No.1 is also very old and aged about more than 80 years. It was mentioned on behalf of the appellants praying for hearing of the appeal. On 8.12.2001 this Court started hearing the appeal, inasmuch as by this time also this exhibit No.7 the postal receipt could not be made available.

(3.) In this appeal though in the trial Court and the First Appellate Court the defendant contested and in this second appeal also initially one learned advocate entered appearance by filing vocalatnama, but at the time of hearing (hearing continued on three dates) no-one appeared on behalf of the defendant respondent even at the second call and this Court was left with no option but to take up the matter for hearing in absence of the learned counsel for the respondent.