KUNJAL SINGH Vs. PARVATI DEVI

JUDGEMENT

(1.) THIS Misc. Appeal is directed against the order dated 23.1.1993 passed by 4th Addl. Judl. Commn. Ranchi in Misc. Case No. 1 of 1982 arising out of Title Appeal No. 76/78 29/80 whereby and where under the learned Addl. Judl. Commissioner dismissed the Miscellaneous case.

(2.) SHORT facts giving rise to this appeal is that the respondent No. 1 filed Title Appeal No. 76 of 1978. No notice of the said Misc. Case was ever tendered or served either through the process server to the petitioner or the proforma defendants Nos. 2 to 5. The said Misc. Case was allowed and the appeal was admitted ex -parte which was numbered as Misc. Case No. 76 of 1978. It is further stated that no notice of the said appeal was either tendered or served upon the petitioner/ appellant. The appeal was heard ex -parte which was allowed by the judgment dated 3.7.1982 by the learned 3rd Additional Judicial Commissioner, Ranchi. Thereafter the petitioner/appellant rushed to Ranchi and got the matter enquired into and got the record of Title Appeal No. 76 of 1978 and inspected through their lawyer. It was detected that the appeal was filed against the judgment and decree dated 7.8.1976 passed by Shri R.C. Srivastava, 3rd Addl. Subordinate Judge, Ranchi in Title Suit No. 132 of 1965. Thereafter the petitioner/appellant filed an application under Order XLI Rule 21 read with Section 151 of the Code of Civil Procedure for setting aside the ex -parte decree and after hearing the appeal, the learned Court below dismissed the Misc. case without appreciating the actual fact and evidence collected on record.

(3.) IT is apparent from the order dated 19.6.1980 that no service report was received. It is further clear from the said petitions Exts. C series that those petitions were filed giving information to the Court that the entire documents are lying with the appellant/respondent who has not yet been informed as he has been residing in the interior area. It is an admitted position that none of the lawyers had filed any vakalatnama on behalf of the appellant in the lower appellate Court. Moreover the entries documents said to have been lying with the appellant which were taken back after judgment in the trial Court. There appears no material on the record to show that notice or summons had ever been served upon all the appellant/ respondent.