Patna High Court
Rajesh Kumar Gadiya vs Sajjan Prasad Sah on 7 December, 2023
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.268 of 2021
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Rajesh Kumar Gadiya, Son of Late Ashok Kumar Gadiya, resident of Patel
Nagar, Ward No. 6, Main Road, Godda, P.S. Godda, District - Godda.
... ... Petitioner/s
Versus
1. Sajjan Prasad Sah, Resident of Village, P.O. and P.S. Hanwara, District
Godda.
2. Hari Prasad Sah, Resident of Village, P.O. and P.S. Hanwara, District Godda.
3. Rajendra Prasad Sah, Resident of Village, P.O. and P.S. Hanwara, District
Godda.
4. Shankar Lal Sah, Resident of Village, P.O. and P.S. Hanwara, District
Godda.
5. Mostt. Gyami Devi, Wife of Om Prakash Sah, Resident of Village, P.O. and
P.S. Hanwara, District Godda.
6. Mostt. Shakuntala Devi, Wife of Late Shyamal Sah, Resident of Village,
P.O. and P.S. Hanwara, District Godda.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Waliur Rahman, Advocate
Mr.Pankaj Maijorwar, Advocate
For the Respondent/s : Mr. Harshwardhan Sahay, Advocate
Mr.Rajeev Kumar Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
ORAL JUDGMENT
Date : 07-12-2023
Let the defects pointed by the stamp reporter be
removed within four weeks.
2. Today, a counter affidavit has been filed on behalf
of the respondents, which is taken on record.
3. Heard learned counsel for the petitioner and
learned counsel for the respondents on the point of admission
and I intend to dispose of this petition at this stage itself with the
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
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consent of learned counsels for the parties.
4. The learned counsel for the petitioner submits that
the petitioner/appellant/defendant has challenged the order dated
22.01.2021
passed by the learned Additional District Judge-IX,
Bhagalpur in Misc. Appeal No.18 of 2019, arising out of Title
Suit No.153 of 2018 whereby and whereunder the learned first
appellate court dismissed the Misc. Appeal No.18 of 2019 filed
by the petitioner/appellant/defendant under Order 43 Rule 1 (r)
of the Code of Civil Procedure.
5. The learned counsel for the petitioner further
submits that the respondents/respondents/plaintiffs filed Title
Suit No.153 of 2018 for partition of the suit land claiming that
the parties to the suit were the heirs of one Chiman Ram and
there was partition of the properties of Chiman Ram, but some
of the properties remained joint. The petitioner/appellant/
defendant appeared and contested the suit claiming that suit was
not maintainable as the suit land has been recorded in the name
of grandfather of the petitioner/appellant/defendant namely,
Radhe Shyam Agarwal and the same was acquired by him
during family partition. The petitioner/appellant/defendant
further claimed that the respondents/respondents/plaintiffs have
got no right, title and interest in the suit property as the suit
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
property was the exclusive property of the
petitioner/appellant/defendant. In Title Suit No.153 of 2018, an
application has been filed under Order 39 Rule 1 & 2 of the
Code of Civil Procedure on behalf of the respondents/
respondents/ plaintiffs claiming that petitioner/ appellant/
defendant no.2 in collusion with the defendant nos. 1 and 3 was
negotiating to sell out the part of the suit land and even one sale
deed has been executed on 30.03.2019 in favour of one
Sudhanshu Kumar Mishra and a prayer has been made to direct
the defendants to maintain status quo over the spot. The said
application was allowed vide order dated 23.05.2019 with a
direction to the parties not to transfer the suit land without
permission of the court.
6. The learned counsel for the petitioner further
submits that being aggrieved by the order dated 23.05.2019, the
petitioner/appellant/defendant preferred Misc. Appeal No.18 of
2019 under Order 43 Rule 1 (r) of the Code of Civil Procedure.
The said appeal was fixed for hearing on 26.02.2020 before the
court of learned Additional District Judge-VI, Bhagalpur and it
was the period of 'Covid Pandemic' and the record of Misc.
Appeal No.18 of 2019 got transferred to the court of learned
Additional District Judge-IX, Bhagalpur on 31.10.2020.
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
Thereafter, on 02.12.2020, which was the next date, judicial
work was hampered due to Corona and next date fixed was on
06.01.2021. On that date, the learned appellate court without
giving any opportunity to the petitioner/appellant/defendant
closed his argument, heard the respondents/respondents/
plaintiffs and fixed the case for orders and, thereafter, on
22.01.2021, order was passed dismissing the appeal filed by the
petitioner/appellant/ defendant.
7. The learned counsel for the petitioner further
submits that both the courts have passed the orders without
appreciating the facts as to whether any prima facie case was
made out in favour of the respondents/respondents/plaintiffs or
not. The petitioner/appellant/defendant has made specific
submission before the learned court that the plaintiffs have
nothing to do with the suit land and despite the clear averments
made on behalf of the petitioner/appellant/defendant, the learned
court below proceeded in the matter and passed the order
restraining the parties not to transfer the suit land without
permission of the court.
8. The learned counsel for the petitioner stressed on
the fact that it is clear from the record that on 06.01.2021, the
petitioner, who was appellant before the learned appellate court,
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
was not present. So the option before the learned appellate court
was either to dismiss the appeal in default or to adjourn the
matter. It could not have heard the appeal on merit in absence of
the appellant and pass the order without hearing the appellant.
The learned counsel referred to Order 41 Rule 17 of the Code of
Civil Procedure in support of his contention that the appeal was
either to be dismissed in default or was to be adjourned. The
learned counsel further submits that the learned appellate court
has specifically mentioned that the appellant was not present at
the time of hearing and the opportunity of hearing of the
appellant was closed. However, the respondents/respondents/
plaintiffs appeared and was heard. This course was not open to
the learned appellate court while hearing the miscellaneous
appeal of the petitioner/appellant/defendant. Thus, the learned
counsel submits that the impugned order is not sustainable and
the same may be set aside.
9. The learned counsel appearing on behalf of the
respondents counters the argument made on behalf of the
petitioner. The learned counsel for the respondents submits that
the impugned order is quite sustainable as the contention of the
appellant was taken into consideration by the learned appellate
court even in his absence. Further, the petitioner/ appellant/
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
defendant has not assailed the initial order on which the
miscellaneous appeal was filed. Even after 06.01.201, the
petitioner/appellant/defendant did not make any prayer to hear
him though the fact was in his knowledge that the matter has
been listed for orders. It was incumbent upon the
petitioner/appellant/defendant to move before the learned
appellate court to recall its order dated 06.01.2021, but the
petitioner/appellant/defendant did not do so. The learned
counsel further submits that moreover, this order of the learned
trial court or the learned appellate court is not exactly
restraining orders since the parties have already been given
liberty to sell the suit land after taking permission of the court.
The learned counsel further submits that even on merits, the
learned appellate court below has discussed the aspects of the
case regarding prima facie case, balance of convenience and
irreparable loss. So the order could not be said to be suffering
from any irregularity or illegality.
10. Perused the records.
11. Having regard to the facts of the case, it is
admitted fact that the matter was heard before the learned
appellate court below and the petitioner/appellant/defendant was
not heard.
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
12. Order 41 Rule 17 of the Code of Civil Procedure
reads as under :
"Order XLI
17. Dismissal of appeal for appellants' default.--
(1) Where on the day fixed, or on any other day to
which the hearing may be adjourned, the appellant
does not appear when the appeal is called on for
hearing, the Court may make an order that the
appeal be dismissed.
[Explanation.--Nothing in this sub-rule shall be
construed as empowering the Court to dismiss the
appeal on the merits.]
(2) Hearing appeal ex parte.--Where the appellant
appears and the respondent does not appear, the
appeal shall be heard ex parte".
13. From bare reading of the aforesaid provision, it is
clear that in case the appellant does not appear and the appeal is
called out for hearing, the court may make an order for
dismissal of the appeal and, at the same time, it has been
clarified that in this Rule 17 (1) nothing should be construed as
empowering the Court to dismiss the appeal on the merits.
14. Evidently, the learned appellate court below has
not considered this provision while passing the order. The
learned appellate court could not have passed the order on
merits in absence of the appellant. So, on this limited point, the
order of the learned appellate court is not sustainable.
Patna High Court C.Misc. No.268 of 2021 dt.07-12-2023
15. Accordingly, the order dated 22.01.2021 passed
by the learned Additional District Judge-IX, Bhagalpur in Misc.
Case No.18 of 2019 is set aside and the matter is remanded to
the learned court below for passing the order afresh after giving
ample opportunity of hearing to the petitioner/appellant/
defendant within a period of one month from the date of
receipt/production of a copy of this judgment.
16. With the aforesaid observations/directions, the
instant petition is allowed.
17. However, it is made clear that this Court has not
expressed any opinion on the merit of the case and whatever has
been discussed is only for the purpose of disposal of the present
petition.
(Arun Kumar Jha, J)
V.K.Pandey/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 08.12.2023
Transmission Date NA
