KANAK CHANDRA BORO Vs. KANKARIA TEA COMPANY

JUDGEMENT

(1.) This Miscellaneous First Appeal is directed against the judgment and order dated 30-4-87 passed by the Assistant District Judge, Darrang, Mangaldoi, in Misc.(J) Case No. 2 of 1987, arising out of Title Suit No. 20/73, dismissing the petition for setting aside the ex parte decree dated 24-6-83.

(2.) The first respondent M/s. Kankaria Tea Company as the owner of Sembari Tea Estate, filed a suit (TS 20/73) in the Court of Asstt. District Judge, Tezpur for declaration of their right, title and interest over an area of land measuring 368 Bighas and for recovery of khas possession. All the defendants entered appearance. Along with the plaint in application under O. 39, Rr. 1 and 2 of C.P.C. was also filed praying for temporary injunction restraining the defendant-appellants from erecting houses and digging earth and/or doing any act which may cause damage to the suit land. The Asstt. District Judge granted temporary injunction as prayed for. The defendants filed objection against granting temporary injunction and the Asstt. District Judge after hearing the parties vacated the ad-interim injunction granted earlier. Thereafter, the plaintiff Company filed an appeal before this Court challenging the order of the Asstt. District Judge vacating the an-interim injunction. This appeal was numbered as MA(F)29/74. On 16-9-81 this appeal was dismissed at the time of hearing is not pressed. The case record was sent back and it was received by the Asstt. District Judge on 16-11-81. On receipt of the record, the Asstt. District Judge issued notice to the counsel for the parties.

(3.) The counsel who appeared earlier in the suit on behalf of the appellant-defendant refused to accept notice on 21-9-82 with the following endorsement. (sic) In spite of the aforesaid endorsement, the Court did not feel it necessary to issue notice to the appellant-defendants and the case was allowed to remain pending till 12-1-1983 without issuing any notice.