KEWAL KUMAR & ORS. Vs. KEWAL KUMAR

JUDGEMENT

(1.) This Revision Petition is directed against order dated 7th May 2007, passed by 2nd Additional District Judge, Jammu, in an application for restoration of Appeal titled Kewal Kumar Vs. Kewal Kumar and others , whereby Appellate Court permitted respondent herein to withdraw the application for restoration of Appeal with liberty to file fresh one, and also against order dated 12th July 2007, passed in an application under Order 41, Rule 19 CPC, whereby Appeal titled Kewal Kumar Vs. Kewal Kumar and others (File No. 10/Misc) dismissed in default on 11th April 2007 , has been readmitted to hearing by the Appellate Court. Brief facts:

(2.) Respondent/plaintiff had filed a Suit for Declaration against petitioners/defendants, seeking declaration to declare adoption deed dated 1st Sept. 1994, registered on 2nd Sept. 1994, in favour of petitioner no.1, as invalid and ineffective in the eyes of law and petitioner no. 1/defendant is not adopted son of Late Behari Lal. In terms of judgement and decree passed on 14th Oct. 2006, learned Munsiff, R.S. Pura, dismissed the suit of respondent. There against, an Appeal was preferred by respondent before the court of learned 2nd Additional District Judge, Jammu. On consideration of the matter, Appeal was admitted to hearing and judgement and decree stayed vide order dated 23rd Nov. 2006. On 11th April 2007, the Appeal was dismissed in default. In order to seek restoration of Appeal, an application was filed by respondent before Appellate Court. On objection with reference to maintainability of application, respondent sought permission of Appellate Court to withdraw application with liberty to file a fresh application seeking re-admission of Appeal. The prayer was granted. As a corollary, respondent moved an application under Order 41, Rule 19 Civil Procedure Code for re-admission of Appeal. Appellate Court vide order dated 12th July 2007 allowed application and readmitted the Appeal to hearing on the ground that respondent had shown sufficient cause, which is a requirement in terms of Order 41, Rule 19 CPC.

(3.) The orders dated 7th May 2007 and 12th July 2007 are questioned in Revision Petition on hand on the ground that the orders are contrary to facts and true legal position. The order impugned dated 7th May 2007 is stated to be not sustainable as withdrawal has been allowed with permission to file a fresh application for re-admission of appeal without any application by respondent and that the order has been passed by the Appellate Court just for the asking of the respondent, which is not permissible in law. It is averred that Order 41, Rule 19 Civil Procedure Code would show that application for re-admission lies under this Rule only when the order of dismissal has been passed under Rule 11 Sub-Rule (2) or Rule 17 or Rule 18 and that onus is shifted upon applicant to prove that he was prevented by any sufficient cause for appearing when the appeal was called for hearing. No sufficient cause and good reason, according to appellants, has been spelt out by respondent before the Appellate Court nor has been any sufficient cause for re admitting the Appeal given by the Appellate Court while passing impugned order. The Appellate Court is said to have exercised the jurisdiction not vested in it and that enforcement of a provision of law in the absence of the fulfilment of the requirement of the specific provisions cannot be termed as technicality.