RAM KESHWAR PRASAD Vs. HARAKHDEO SHARMA

JUDGEMENT

(1.) THIS Miscellaneous Appeal has been preferred against the order dated 16.10.1993 passed by 1st Additional District Judge, Nalanda in Misc. Case No. 8 of 1992 whereby the learned Additional District Judge has been pleased to refuse to restore Money Appeal No. 2 of 1987 which was dismissed in default by order dated 6.8.1992.

(2.) IT has been submitted by the learned Advocate of the appellant that Money Appeal No. 2 of 1987 was dismissed because of the fact that the appellant, who was plaintiff in Money Suit No. 7 of 1975/1 of 1987, failed to serve notice upon respondent no. 1 of Money Appeal No. 2 of 1987 who was a bank official and during the relevant time was transferred to some other place and his address was not known to the appellant. It was submitted by the learned Advocate of the appellant that on 6.8.1992 the appellant had made proper pairvi in Money Appeal No. 2 of 1987 and had filed a petition praying therein to direct respondent nos. 2 and 3, who had already made appearance in the appeal to give address of respondent no.1. He submitted that a copy of the said petition was also served upon the lawyer of the respondents no. 2 and 3 but in spite of that, the address of respondent no.1 could not be supplied to the appellant as a result of which the appellant was not in a position to serve notice upon respondent no.1. He submitted that the above facts establish that the refusal of the appellate court to re -admit the appeal was not justified and so, he prayed to allow this appeal.

(3.) I have gone through Exhibit 1 which is the petition dated 6.8.1992 filed on behalf of the appellant. There is no mention in the application that the appellant had made any request to the court to direct the other respondents who had made appearance in the appeal to supply the address of respondent no.1. Thus, the contention of the learned Advocate of the appellant that as other respondents who had made appearance in the appeal, failed to supply the address of respondent no. 1, as such he failed to serve notice upon respondent no.1, does not appear to be correct. The impugned order dated 16.10.1993 of the 1st Additional District Judge, Nalanda which is under challenge shows that the appellant failed to comply the court 'sorder for service of notice upon respondent no.1 from 13.12.1990 to 6.8.1992 which establishes beyond doubt that the appellant was not interested in prosecuting the appeal rather he was interested to keep the appeal pending in order to harass the respondents.