PRABHAT Vs. JAGANNATH

JUDGEMENT

(1.) INSTANT intra Court appeal has been filed against the impugned order of the ld. single Judge dt. 20.7.2011 upholding the orders dt. 3.9.2004 and 2.11.2004 passed by the ld. Sub Divisional Officer and order dt. 5.7.2008 passed by the Board of Revenue and dismissed writ petition. The facts in brief which are relevant for our consideration is that the respondents -1 -20 jointly filed a revenue suit for declaration and permanent injunction before the ld. S.D.O., Amer and as per the record, notices were issued on 6.7.2004 for 3.9.2004 and the revenue Court in its order sheet dt. 3.9.2004 observed that the present appellants have failed to appear despite service and considered to proceed ex parte against them, however, on two dates of hearing i.e. 8.9.2004 and 13.9.2004, no effective steps were taken because of Presiding Officer was on leave, however, on next date 20.9.2004, the present appellants filed application u/O 9 R.7 C.P.C. for recalling of order dt. 3.9.2004 and provide them opportunity of hearing but the ld. revenue Court kept the application pending and granted permission to examine plaintiffs -witnesses PW -1 -8 on 20.9.2004 and posted the application for 2.11.2004. On 2.11.2004, the application filed by plaintiff was rejected on the premise that witnesses have already been examined as no sufficient cause was shown for non appearance on 20.9.2004 and the order dt. 2.11.2004 was affirmed on 5.7.2008 by the Board of Revenue and by the ld. Single Judge of this Court.

(2.) COUNSEL for appellant submits that notices were issued by the ld. revenue Court on 6.7.2004 for 3.9.2004 and notices are served but the appellants could not appeared on 3.9.2004 for unavoidable reason, ex parte proceedings were initiated but when the matter came before the Court on 20.9.2004, application was filed by the appellant u/O 9 R. 7 C.P.C. for recalling of the order initiating ex parte proceedings against the appellant on 3.9.2004 and submits that at least his application was supposed to be granted precedence before the plaintiffs witnesses were examined on 20.9.2004 and that certainly denies fair opportunity of hearing.

(3.) COUNSEL for appellant further submits that the application filed on 20.9.2004 was posted for hearing on 2.11.2004 and plaintiffs witnesses (PW1 to PW8) were examined on 20.9.2004 the process itself was wholly uncalled for and lack transparency and that denies the right of cross examination and in absence of their written statement being on record, action and the proceedings in the manner initiated could not be said to be fair in the eye of law and that certainly requires interference of this Court.