BIBHUTI BHUSAN PADHI Vs. SHANTILATA PADHI @ PANDA

JUDGEMENT

(1.) THE learned Ad hoc Addl.District Judge, FTCI, Puri on the basis of a Memo filed by an advocate dismissed Title Appeal No.38/13/66 of 1999 by order dated 6.5.2002. The said Title Appeal was filed by the defendants 1 and 2 in T.S. No.24 of 1994 of the Court of the Civil Judge (SD), Puri challenging the judgment and decree passed against them in the said suit. The present petitioner who was defendant No.2 -appellant No.2 was looking after the Title Appeal on behalf of both the appellants. He filed a petition under Section 47(1) read with Section 151 of the Code of Civil Procedure before the District Judge to recall or review the aforesaid order dated 6.5.2002, registered as Misc. Case No.4 of 2004, on the ground that the appellants had not instructed/authorized the advocate engaged in the Title Appeal to file any Memo. to withdraw the appeal and that the Memo filed by the concerned advocate was without any instruction/authority. The said Misc. Case having been rejected by order dated 15.7.2005 by the Ad hoc Addl.District Judge, FTC -I Puri, appellant No.2 who was the petitioner in the said Misc.Case has approached this Court invoking Certiorari jurisdiction.

(2.) THE scenario of facts reveal that present opposite party No.1 Smt. Shantilata Padhi alias Panda had filed the aforesaid Title Suit for partition before the learned Civil Judge (SD), Puri. The petitioner was arrayed as defendant No.2 in that suit while present opposite parties 2 and 3 were respectively arrayed as defendant Nos.3 and 1. After a full -fledged trial the Trial Court passed a preliminary decree. Being aggrieved by the judgment of the Trial Court the petitioner (defendant No.2) and defendant No.1 had filed the aforesaid Title Appeal before the District Judge, Puri which was initially registered as Title Appeal No.66 of 1999.

(3.) ACCORDING to Mr. R.K. Mohanty, learned counsel for the petitioner, the advocate engaged by the appellants in the title Appeal had absolutely no jurisdiction or authority to file the aforesaid Memo. before the Court below without any specific instructions to him by the appellants. He emphatically submitted that the appellants were all along diligent about the appeal and at no point of time had instructed him to file any Memo to the effect that the appellants did not want to proceed with the appeal any further and such fact being averred in the Misc.Case, the Court below ought to have recalled the order dismissing the appeal on the basis of the Memo. filed.