GAYATRI DEVI Vs. COMMISSIONER OF GAYA

JUDGEMENT

(1.) The appellant is aggrieved by an order refusing to readmitting her appeal which was dismissed for default.

(2.) The relevant facts are as follows:

(3.) The appellant filed a suit in the court of Munsif Ist Gaya for grant of decree of permanent injunction against the respondent from interfering with her peaceful possession over property in dispute and also from removing the enchroachment by force or in interfering in making construction upon the same. The said suit was dismissed on 22 -8 -1979. The appellant filed Title Appeal No. 190 of 1979, which was admitted on 18 -12 -1979 and in due course transferred to the Court of Additional Subordinate Judge IV, Gaya. From the records, it appears that on 7 -12 -1984, the appellant filed hazri but the respondent did no pairvi and the bearing of the appeal was adjourned for 17 -12 -1984. On 17 -12 -1984, the presiding officer was on leave and the hearing of the appeal was adjourned to 9 -1 -1985. On 9 -1 -1985, no one appeared on behalf of any side and the hearing was adjourned to 21 -1 -1985. On 21 -1 -1985, the appellant filed a time petition but no one appeared on behalf of the respondent and the hearing was adjourned to 30th January, 1985. Same course followed on 30th January, 1985 and 7th February, 1985. The hearing was adjourned to 21 -2 -1985. It appears that on 21 -3 -1985 no step was taken by the appellant. The respondent was also absent. No one had appeared on behalf of the appellant as well as on behalf of the respondent. The appeal was thus dismissed for default. A petition for restoration of the appeal was filed on behalf of the appellant alleging therein that since she is a lady, her case is being looked after by her husband, who belongs to a business community and often goes out of the town in connection with his business work, that prayer for time could not be made as her husband who was expected to be present on 21 -3 -1985, but could not come back, that there was no one in the family of the appellant to look after the appeal except her husband, and that she will suffer an irreparable injury, if the appeal is not re -admitted. The said application was registered as Miscellaneous Case No. 5 of 1985. On behalf of the appellant her husband was examined. The appellant's husband, however, could not be cross -examined, as no one appeared despite notice on behalf of the respondent to oppose the prayer. Even before this Court also no one has appeared on behalf of the respondent. By the impugned order, her prayer was rejected on the ground that on three consecutive previous dates, prayer for time was made on her behalf and that on 26 -11 -1984, 16 -12 -1984 and 9 -1 -1985, even no pairvi was made and that the lawyer could have been well instructed to file time petitions and all these show intentional latches on the part of the applicant, more so when no evidence has been led to suggest that there was unavoidable circumstance from appearing in court or in not making pairvi on 21 -3 -1985.