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Madhusudan Dhal Vs. Gaya Prasad Giri and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal No. 123 of 1978
Judge
Reported inAIR1983Ori153; 54(1982)CLT387
ActsCode of Civil Procedure (CPC) , 1908 - Order 41, Rule 19 - Order 43, Rule 1
AppellantMadhusudan Dhal
RespondentGaya Prasad Giri and ors.
Appellant AdvocateP.K. Misra, Adv.
Respondent AdvocateP.C. Misra and ;B. Pal, Advs.
Cases ReferredRafiq v. Munshilal
Excerpt:
.....be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the high court to inquire as to what is happening in the high..........p. c. challenging the order dated 5-8-78 of the district judge, mayurbhanj, refusing to re-admit title appeal no. 22-m of 1974 on his file on an application under order 41, rule 19 of the code. 2. title appeal no. 22-m of 1974 was filed by the appellant against the judgment and decree of the learned subordinate judge of baripada, in title suit no. 59 of 1972. on 23-8-77 the appeal was made ready for hearing and was directed to be called on 21-9-77 for the purpose. thus 21st sept. 1977 was the first date of hearing. on that day the following order was made:-- 'respondent is ready. appellant applies for time on the ground stated therein. heard petition rejected as frivolous. appellant to get ready for hearing by 12 noon. later advocate for appellant and advocate for respondent are.....
Judgment:

R.N. Misra, C.J.

1. This is a defendant's appeal under Order 43, Rule 1 (t) of the Civil P. C. challenging the order dated 5-8-78 of the District Judge, Mayurbhanj, refusing to re-admit Title Appeal No. 22-M of 1974 on his file on an application under Order 41, Rule 19 of the Code.

2. Title Appeal No. 22-M of 1974 was filed by the appellant against the judgment and decree of the learned Subordinate Judge of Baripada, in Title Suit No. 59 of 1972. On 23-8-77 the appeal was made ready for hearing and was directed to be called on 21-9-77 for the purpose. Thus 21st Sept. 1977 was the first date of hearing. On that day the following order was made:--

'Respondent is ready. Appellant applies for time on the ground stated therein. Heard Petition rejected as frivolous. Appellant to get ready for hearing by 12 noon.

Later

Advocate for appellant and Advocate for respondent are present. Advocate for appellant requests for time till tomorrow. I am also engaged in another part-heard Civil Appeal today. Call on 22-9-77 for hearing at the request of Advocate for appellant.'

On the adjourned date, i.e. 22nd Sept., 1977 the following order was made:--

'Respondents ready. Appellant applies for time on the ground that the relevant papers are not received from Sri R.C. Patnaik, Advocate of Cuttack. None appears on repeated calls to move the petition. Furthermore, the ground taken in the petition is not consistent with the petition filed yesterday. Petition rejected. As neither the appellant nor his lawyer appears in spite of calls, the appeal stands dismissed for default with costs to respondents Advocate's fee at the ex parte rate.'

On 28-9-77 the application under Order 41, Rule 19 of the Code was made. In support of the application the local Advocate was examined as P. W. 1 and the present appellant was examined as P. W. 2. No evidence was laid on the respondents' side.

3. P. W. 1 has categorically said that the appellant had come and taken the brief from him with a view to engaging Mr. Patnaik at Cuttack. There is clear evidence of both the witnesses that on 21-9-77 the appellant was present in the court. His son had come to Cuttack to take Mr. Patnaik. The learned appellate Judge has made use of the fact that there was discrepancy as to when Mr. Patnaik was briefed. While the appellant's local Advocate P. W. 1 stated that it was about 2-3 weeks before the date of hearing, the appellant as P. W. 2 had indicated that Mr. Patnaik had been briefed from the point of time when the appeal was filed.

In the absence of any evidence to the contrary there is no justification to disbelieve the fact that Mr. Patnaik had been briefed to argue the appeal whether from the time of preferring of the appeal or a few weeks before the actual date of hearing. Though the appeal was already three years old, it had been made ready only a few days before the date on which it had been dismissed. In 'fact, as already indicated, 21st Sept. 1977 was the very first date of hearing. If an adjournment was asked for on the very first date of hearing, the learned appellate Judge, particularly when he had been told that an Advocate from Cuttack had been briefed to argue the appeal, should not have adjourned the appeal by a day. Judicial notice can be taken of the fact that the distance between Baripada and Cuttack is about 136 miles. Communication had to be sent to the Advocate at Cuttack and he had to make his arrangements to go to Baripada. The learned appellate Judge in these circumstances should have given reasonable time for the appellant to come with his Advocate for the hearing of the appeal. In the facts of the case, I am inclined to think that the learned appellate Judge went wrong in refusing to readmit the appeal.

4. In course of hearing of this appeal, reliance was placed by the appellant's counsel on a Bench decision of the Supreme Court in the case of Rafiq v. Munshilal, AIR 1981 SC 1400, where the following observation was made (at p. 1401) :--

'The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select the advocate, brief him, pay the fees demanded by him and then trust the learned advocate to the rest of the things. The party may be a villager or may belong to a rural area and, may have no knowledge of the Court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch-dog of the advocate that the latter appears in thematter when it is listed. .................. ..........................................................'

The facts of the present ease are very different. An Advocate from Cuttack had been engaged to argue the appeal at Baripada at a distance of about 136 miles. It was for the appellant to ensure the availability of the Advocate at that station. At any rate, there is no clear evidence as to what the arrangement was. It would, therefore, not be proper to rely on this principle.

5. For the reasons I have already indicated, I am inclined to take the view that refusal to re-admit the appeal would be contrary to the interests of justice. The appeal is accordingly allowed and the impugned order is vacated on a finding that there was sufficient cause for the absence of the appellant and his Advocate on the date of hearing. The Title Appeal shall, therefore, stand readmitted to be disposed of on merit. I, however, think that the respondents who have been forced to appear in this Court through their Advocates and would now be required, to appear before the lower appellate Court as respondents in the Title Appeal must be adequately compensated. They are in two sets. Respondents 1, 5 and 6 are represented by Mr. Pal while respondents 2 and 4 are represented by Mr. P.C. Misra. I direct that the appellant shall pay a total amount of Rs. 300/- by way of costs for restoration of the appeal. A moiety out of it shall be given to Mr. Pal and the other to Mr. P.C. Misra. In case these payments are made within three weeks from now and receipts from both the Advocates are filed, the record shall be transmitted, to the lower appellate court with a direction to hear the Title Appeal afresh. Failing compliance with the order for costs, the Miscellaneous Appeal shall stand dismissed and the dismissal of the Title Appeal shall be upheld.


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