MANIRANJAN NATH Vs. SUMATI DAS

JUDGEMENT

(1.) The short question of law which arises in this Second Appeal is whether the first appeal which was preferred before the learned Sub-Judge, West Tripura against the order of learned Second Additional Munsiff, Sadar dismissing the suit of the appellant-plaintiff was competent in law or not. The circumstances under which this question arises may therefore be briefly stated as under :

(2.) On 13-4-1970 the plaintiff who is the appellant before this Court filed Title Suit No. 31/70 in the Court of learned Munsiff, Sadar for declaration of his title to and recovery of khas possession of the suit land. After appearance of the defendants the issues were framed and the case waas fixed for preemptory hearing. But at this stage of preemptory hearing the suit suffered a good number of adjournments. However, as a last chance to the plaintiff the case was fixed on 4-1-1973 for preemptory hearing. But on this date the plaintiff neither appeared nor took any step. So, the learned Munsiff dismissed the suit for default. Thereafter, the plaintiff filed an application for restoration of the suit. This application was numbered as 8 (Misc)/73. By the order dated 21-3-1973 learned Addl. Munsiff disposed of the Misc. Case restoring the suit to its original life. But again the suit suffered a few adjournments and thereafter the case was fixed on 7-2-74 as a last chance for peremptory hearing. But even though the date was fixed as a last chance the plaintiff again approached for adjournment and the prayer for adjournment was granted fixing the next date on 28-2-1974. On this date the plaintiff again prayed for adjournment but learned Addl. Munsiff rejected the prayer and dismissed the suit for defaut.

(3.) Thereafter, the plaintiff filed an appeal in the Court of learned Sub-Judge being Title Appeal No. 19/1974 on 2-5-1974 along with a prayer for condoration of the delay in preferring the appeal. But the appeal was filed only with a certified copy of the judgment and since no certified copy of the decree was filed along with the Memo of appeal learned counsel appearing on behalf of the respondents-defendants raised a preliminary objection as to the maintainability of the appeal on the ground that certified copy of the decree was not annexed along with the appeal. Learned appellate authority by his judgment dated 27th April, 1977 dismissed the appeal on the ground that the prayer for condonation cannot be granted as the appellant- plaintiff did not file the application for certified copy of the decree within the period of limitation. Hence, this Second Appeal.