KANHAIYA LAL MAHTO Vs. DAMAN MAHTO

JUDGEMENT

(1.) IN this appeal the appellants have assailed the order dated 23.8.2002 passed by the 3rd Additional District Judge, Dhanbad in Miscellaneous Case No. 1/2002 rejecting the petition filed under Order XLI, Rule 19, Civil Procedure Code and refusing to readmit the Title Appeal No. 61/90 which was dismissed for non - prosecution on 12.8.2002. According to the learned counsel for the appellants, the said appeal was dismissed on the ground that the appellants were not taking any interest in the said appeal and they were not ready for hearing when the same was called on for hearing.

(2.) MR . Amar Kumar Sinha, learned counsel appearing on behalf of the appellants, submitted that the said dismissal order of the learned Court below is absolutely without any cogent material and evidence on record, inasmuch as, the Court below committed errors of record in holding that on 5.8.2002 when the appeal was called out, the appellants were not ready for hearing. The learned counsel referred to the order -sheet of the Title Appeal No. 61/90, which is Annexure -2 to the memo of appeal, and drew the attention of this Court on the order dated 5.8.2002 which reads thus : -

(3.) MR . S.N. Das, learned counsel appearing on behalf of the respondents, though admitted that the appeal was heard in part, yet submitted that on 12.8.2002 the appellants were not ready and their counsel did not argue the appeal and there was no other way for the Court than to dismiss the appeal. Learned counsel further submitted that since the appellant failed to explain and to show sufficient cause for his absence, the Court below has rightly dismissed the miscellaneous case.