LAWS(JHAR)-2009-11-129

BIMAL KUMAR Vs. SAKUNATALA DEVI

Decided On November 18, 2009
BIMAL KUMAR Appellant
V/S
Sakunatala Devi Respondents

JUDGEMENT

(1.) THIS appeal has been filed against the order dated 3.10.2008 passed by learned Additional Judicial Commissioner, FTC - VI, Ranchi in Misc. Case No. 1 of 2004 which was filed by the appellants under Order XLI Rule 19 read with Section 151 of the Code of Civil Procedure for re -admission of the Title Appeal No. 109 of 1994.

(2.) MR . P.K. Prasad, learned senior counsel appearing for the appellants submitted that the said appeal was dismissed for non -compliance of order dated 20.12.2003, which was to be complied on 7.1.2004, but the appeal was dismissed on 6.1.2004, and moreover the whole appeal could not be dismissed and at best it could be dismissed only against non -appearing respondents; that the earlier conduct of the appellants could not be taken into consideration; that two witnesses were examined by the plaintiffs -appellants to show that they were under the impression that the date fixed is 7.1.2004 and not 6.1.2004.

(3.) IT is true that the suit was filed by Late Kishori Lal Kasera far back in the year 1973 and it was dismissed in 1994, and the said appeal is pending since 1994 for appearance of some of the respondents; and inspite of several orders, the appellants did not take steps for service of notice on non -appearing respondents, but it is also true that the entire appeal could not be dismissed even if the date fixed for taking steps was 6.1.2004 and it could be dismissed only against non -appearing respondents. Moreover, the witnesses examined on behalf of the appellants said that they were under the impression that the date fixed was 7.1.2004 and then immediately on 16.1.2004, the appellants filed this petition for re -admission of the appeal being Misc. Case No. 1 of 2004. Arun Choudhury Versus State Of Jharkhand