MOHD SIDIQ GANAI Vs. GH AHMED SOOFI

JUDGEMENT

(1.) THE appellant before me is the plaintiff in a suit for partition, He claims to be an assignee from a lady who had a partial right in the property which is the subject matter of the suit, preliminary decree was passed, which was confirmed in appeal This was challenged before the High Court in a second appeal. Incidentally a person claiming to be a done from the same lady, who had assigned the right to the plaintiff, claimed right in the property on the strength of an oral gift. The question whether an oral gift was permissible under law was ultimately decided by the Full Bench The case was sent back to the learned Single Judge for proceeding according to law. He up -held the preliminary judgment and decree passed by the District Judge. At the time when the final decree proceedings were on, the same person attempted to get himself impleaded as a party. That was dismissed which was confirmed in revision by a Division Bench on 2 -9 -1977 Thereafter the case was sent back to the trial court for passing a final decree after receiving the report of the Commissioner The trial court passed a final decree on 26 -12 -1977, on the basis of the report submitted by the Commissioner. First respondent took the matter again in appeal. The appeal first came before the District Judge, Srinagar, who transferred it to the Addl. District Judge, Srinagar The said person filed separate suit in the High Court seeking a declaration to the effect that the preliminary judgment and decree by the trial court was a nullity and followed it up by various proceedings to prevent the appeal pending before the Additional District Judge, being heard and disposed of The appeal was dismissed on 23 -10 -1982 An application was made for the first respondent to restore the appeal The said application was posted to 10 -11 -1982. On 10 -11 -1982, the learned District Judge adjourned the application to 8 -1 -1983. Ultimately it was heard on 8 -1 -1983. On that day the applicant was absent. He adjourned the case to 23 -2 -1983 directing the process to be paid. The order did not stop there. The order which is quoted in Para No. 9 of the petition shows that while the earlier part of the order was passed, the counsel for the petitioner appeared and the appeal was restored to its file. The appeal was taken up on 23 -2 -1983 and was adjourned to 2 -3 -1983, and then to 12 -3 -1983, and to 14 -3 -1983. On 14 -3 -1983, the learned District Judge accepted the appeal, set aside the Judgment and decree of the trial court passed on 26 -12 -1977 and ordered that the suit of the plaintiff appellant would stand dismissed with casts.

(2.) WHEN the appellant learnt about this, he filed an application for hearing the appeal afresh since he had no notice of the hearing of the appeal. This application was dismissed by the District Judge n 11 -10 -83, holding that the appellant had in law full knowledge about the restoration proceedings. It is this order that is under challenge in this appeal.

(3.) I have heard the counsel for the appellant and the respondent in detail. I do not think it necessary to deal at length with the questions of law raised before me. From the materials available, I find that the appellant had been at all stages diligent in prosecuting the suit initiated by him which started in 1967. It is not necessary to make any observation about the manner in which the learned Addl. District Judge restored the appeal and then dismissed the appeal and the suit. Suffice it to say that an opportunity should have been granted to the appellant in the interest of Justice before allowing the appeal and dismissing the suit All that is past history. What is necessary now is to give an opportunity to both sides to forward their respective cases in the appeal. While the appellant forcefully contended that the first respondent had adopted all obstructionist tactics to deny to him the fruits of the decree obtained by him, the first respondents counsel, with equal vehemence, submits that the appellant secured a decree without even serving notice on some of the defendants in the suit. These are matters which have to be agitated before the court below. In my view, interests of Justice and fair play require that the order under appeal should be set aside, so that both sides can be heard by the court below.