BUDHIMAN BISWAL Vs. STATE OF ORISSA & ANOTHER

JUDGEMENT

(1.) This second appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Kamakhyanagar in R.F.A. No. 49 of 2012 (28/2014). By the said judgment and decree, the lower appellate court has set aside the judgment and decree passed by the learned Civil Judge (Sr. Division), Kamakhyanagar in Civil Suit No. 11 of 2008 decreeing the suit filed by the appellant as the plaintiff. The above noted first appeal had been filed by the defendants as the appellants, being aggrieved by the judgment and decree passed by the trial court in the said suit declaring the right, title and interest of the appellant plaintiff over the suit land with confirmation of his possession. The lower appellate court by the impugned judgment and decree has dismissed the suit filed by the appellant-plaintiff.

(2.) The appeal has been admitted on the following substantial question of law:

(3.) Learned counsel for the appellant submits that the appeal was posted to 22.01.2016 for hearing and on that day the parties were not present and the learned counsel appearing on their behalf were also absent as the members of the local Bar Association were abstaining from the court work. In such situation, the lower appellate court without giving any further opportunity for hearing of the appeal has gone to peruse the case record and then has finally delivered judgment on 05.02.2016 by allowing the appeal, in setting aside the findings of the trial court and dismissing the suit filed by the present appellant-plaintiff. According to him, the course adopted by the lower appellate court is not permissible under the provisions of Order-41 of the Code of Civil Procedure (in short, hereinafter called as 'the Code'). It is his submission that the lower appellate court in that situation even when was not inclined to adjourn the hearing of the appeal ought to have dismissed the said appeal in view of the absence of the parties. Thus, he submits that the substantial question of law as above has to receive its answer in the negative that the course adopted by the lower appellate court does not have the sanction of law.