TIKESWAR SAHOO Vs. AMBIKA SAHUANI

JUDGEMENT

(1.) Plaintiff No. 3 is the appellant against a reversing decision. In view of the order proposed to be passed hereafter, it is unnecessary to state in detail about the rival claims. Suffice it to say that the plaintiffs had filed Title Suit No. 25/126 of 1980/86 for declaration of title and confirmation of possession and in the alternative, for recovery of possession of 'B' schedule property which was decreed by the trial Court by judgment dated 28-11-1987. Title Appeal No. 8/6 of 1988/89 was filed by the defendant No. 2. The said appeal was allowed ex parte against 'all' the plaintiff-respondents including the present appellant who had been arrayed as respondent No. 3 in the said appeal. A Civil Revision was it led by the present appellant against the judgment of the lower appellate Court, but the same was withdrawn for filing appropriate petition. Subsequently, a petition was filed for setting for setting aside the ex parte decree of the lower appellate Court, but the same was held to be barraed by limitation. Thereafter the present Second Appeal has been filed.

(2.) In the present appeal apart from challenging the legality of the Judgment on merit, the appellant has contended that the appeal should be remanded to the lower appellate Court for giving the present appellant an opportunity of being heard as the lower appellate Court had not given him that opportunity. It has been contended that though the appellant was present in person, he could not be heard as the appeal in the lower appellate Court was not called on for hearing. The learned counsel for the appellant has submitted that the present appellant was present in person before the lower appellate Court on 12-12-1988 and thereafter on the subsequent dates to which the appeal had been posted. It is further submitted that on 19-7-1989, the Advocate who was appearing for some of the other respondents in the Title Appeal had reported no instruction, but the lower appellate Court erroneously assumed that the Advocate had, indeed, reported no instruction on behalf of all the respondents and proceeded to hear the appeal ex parte against all without calling on the case for hearing.

(3.) A perusal of the lower appellate Court record indeed supports such a contention of the learned counsel for the appellant. The relevant portion of the order dated 19-7-1989 passed when the title appeal was heard ex parte is as follows :-