Patna High Court
Yogendra Jha vs Shambhu Jha on 8 April, 2025
IN THE HIGH COURT OF JUDICATURE AT PATNA
Miscellaneous Appeal No.550 of 2019
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Yogendra Jha son of late Ramchandra Jha Resident of Village- Harpur Pusa
(Bhuskaul), P.S. and P.O.- Pusa, District- Samastipur.
... ... Appellant/s
Versus
1. Shambhu Jha son of late Ram Narain Jha resident of Village- Harpur Pusa
(Bhuskaul), P.O. and P.S.- Pusa, District- Samastipur.
2. Sarwan Jha son of late Ram Narain Jha resident of Village- Harpur Pusa
(Bhuskaul), P.O. and P.S.- Pusa, District- Samastipur.
3. Harendra Jha son of Late Ram Narain Jha resident of Village- Harpur Pusa
(Bhuskaul), P.O. and P.S.- Pusa, District- Samastipur.
4. Suresh Kumar Jha Son of Late Ram Narain Jha resident of Village- Harpur
Pusa (Bhuskaul), P.O. and P.S.- Pusa, District- Samastipur.
5. Gudiya Devi D/o Late Ram Narain Jha, W/o Ajit Jha resident of Village-
Mahisari, Ujiarpur, P.O.- Mahisari Babu Pokhar Chowk, P.S.- Ujiyarpur,
District- Samastipur.
... ... Respondent/s
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Appearance :
For the Appellant/s : Mr. Shashi Kant Singh, Advocate
For the Respondent/s : Mr. Siyaram Pandey, Advocate
Mr. Dewesh Kr. Pandey, Advocate
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CORAM: HONOURABLE MR. JUSTICE RAMESH CHAND
MALVIYA
ORAL JUDGMENT
Date : 08-04-2025
This Misc. Appeal is directed against order
dated 29.05.2019 passed by the learned 2nd Additional
District Judge, Samastipur in Misc. Case No. 12 of 2011
whereby and where-under the application filed by the
appellant under Order XLI Rule 19 of the Code of Civil
Procedure, 1908 (hereinafter referred as "CPC") has been
rejected.
2. The case of the plaintiff/ appellant is that
Patna High Court MA No.550 of 2019 dt.08-04-2025
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they have filed Title Suit No. 29 of 2005 in the Court of
learned Subordinate Judge, 1st, Samastipur for declaration
of their right, title and possession over the suit land of khata
no.142, khesra no. 2477 area 3 decimals situated in Mauza-
Harpur Pusa, P.S.-Pusa, Samastipur.
3. The case of the plaintiff-appellant in
short is that Ram Sumri Devi was the grand mother of the
appellant who died leaving behind a son namely
Ramchandra Jha and he also died leaving behind a son
Yogendra Jha (appellant). Ram Sumri Devi purchased the
disputed plot S. T. No. 2477 with an area 16 dhurs by
registered sale deed dated 14.07.1928. She also purchased
S. P. No. 2476 before execution of S.P. 2477 which is
adjacent on the east side of the disputed plot No. 2477. The
appellant have contended that the defendant (OP no.1)
constructed a hut is S.P. No. 2477 without right and title
from the west side in part of S.P. No. 2477 and started
creating dispute. The defendant No. 1 (OP No.1) filed a rent
fixation suit No.15 of 1996-97 before the Anchal office,
Pusa in which the appellant filed an objection but it was
rejected and C.O., Pusa ordered for fixation of rent and sent
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the record to the D.C.L.R. Samastipur for its consideration.
The appellant also made an objection in the court of
D.C.L.R., Samastipur but the same was rejected. The
appellant preferred Mutation Appeal before the Additional
Collector, Samastipur in which Addl. Collector, inspected
the disputed plot and found an area of 2 decimals only on
the disputed plot No. 2477 to be in possession of the
plaintiff and 4 decimals in possession of the defendants. The
land was thus demarcated by Anchal Amin and he disposed
of Mutation Appeal vide order dated 25.11.2000. In the
March 2005, the defendant No.1 dispossessed the appellant
from an area of 3 dhur from north of his land. Hence the
plaintiff filed T. S. No. 29 of 2005. Upon contest, the
aforesaid Title suit No.29 of 2005 was dismissed vide
judgment and decree dated 29.06.2009 and 16.07.2009.
4. Being aggrieved and dissatisfied with the
said judgment and decree dated 29.06.2009 passed in Title
Suit No. 29 of 2005, the plaintiffs preferred title appeal No.
81 of 2009 before the learned District Judge, Samastipur.
The appeal was admitted and transferred in the court of
FTC-IVth for disposal.
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5. The Appellant- Petitioner filed Civil
Misc. Case no. 42 of 2010 under section 24 C.P.C. for
transfer of Title Appeal No. 81 of 2009 from the court of
F.T.C.- IVth, Samastipur to any other court for interest of
justice before the learned District Judge, Samastipur.
During pendency of the Civil Misc. No. 42/2010 and inspite
of filing Time petition, the learned court dismissed the Title
Appeal No. 81 of 2009 by rejecting the Time petition dated
26.05.2011
vide order dated 26.05.2011 on default.
Following this the Appellant filed Misc. Appeal No. 12 of
2011, under Order XLI, Rule-19 C.P.C. with a prayer for
restoration of T.A. No. 81 of 2009 which was dismissed on
29.05.2019.
6. Learned counsel for the appellant
submits that the learned Appellate Court failed to appreciate
that the appellants had filed a time petition during the
pendency of Civil Misc. Case No. 42 of 2010 filed under
Section 24 of CPC for trasnfer of suit to some other Court
from the FTC-IVth, Samastipur in the interest of justice. He
further submits that the ground taken by the learned
Appellate Court that the appellant failed to get the appeal
Patna High Court MA No.550 of 2019 dt.08-04-2025
disposed of within 10 years is not correct in the facts and
circumstances of this case because the appellants had
already filed a time petition. He submits that the appellants
are not responsible for pendency of appeal for 10 years and
there were no delaying tactics on the part of the appellants.
He further submits that the appellant has good case on merit
and will suffer irreparable loss / injury which cannot be
compensated in any manner whatsoever.
7. In the leading case of Hon'ble Supreme
Court in Sangram Singh Vs. Election Tribunal, Kotah
reported in AIR 1955 SC 425; observed as under:
"A code of procedure must be
regarded as such. It is procedure
something designed to facilitate justice
and further its ends: not a penal
enactment for punishment and penalties,
not a thing designed to trip people up.
Too technical a construction of sections
that leaves no room for reasonable
elasticity of interpretation should
therefore be guarded against (provided
always that justice is done to both sides)
lest the very means designed for the
furtherance of justice be used to frustrate
it. Our laws of procedure are grounded
on a principle of natural justice which
requires that men should not be
condemned unheard, that decisions
Patna High Court MA No.550 of 2019 dt.08-04-2025
should not be reached behind their backs,
that proceedings that affects their lives
and property should not be precluded
from participating in them. Of course,
there must be exceptions and where they
are clearly defined they must be given
effect to. But taken by and large, and
subject to that proviso, our laws of
procedure should be construed, wherever,
that is reasonably possible, in the light of
that principle."
8. The law is well settled that the first
appeal is a valuable right of the appellant and the appellant
are entitled for an opportunity to prosecute their appeal on
merit. The Hon'ble Supreme Court in The Commissioner
Mysore Urban Vs. S.S. Sarvesh (2019) 5 SCC 144 in
paragraph 19 observed as follows:
"19. In our view, the courts
below should have seen that the first
appeal is a valuable right of the appellant
and, therefore, the appellant Authority
was entitled for an opportunity to
prosecute their appeal on merits. If the
appellant's advocate did not appear may
be for myriad reasons, the Court could
have imposed some costs on them for
restoration of their appeal to compensate
the respondent (plaintiff) instead of
depriving them of their valuable right to
prosecute the appeal on merits. This is
what Vivian Bose, J. has reminded to the
courts while dealing with the cases of this
Patna High Court MA No.550 of 2019 dt.08-04-2025
nature in Sangram Singh to do
substantial justice to both the parties to
the lis. Indeed, dismissal of the appeal in
default and dismissal of the appeal on
merits makes a difference. The former
dismissal is behind the back of the litigant
and latter dismissal is after hearing the
litigant. The latter is always preferred
than the former." (Emphasis supplied)
9. Having heard the learned counsel for
appellant and on perusal of the materials on record and
keeping the aforementioned statement of law in
consideration and applying the same in the facts of this
case, in my considered opinion, the application made by
appellant discloses a 'sufficient cause' and thus the learned
Appellate Court erred in dismissing the application/Misc.
Case made under Order XLI Rule 19 CPC. The application,
therefore, deserves to be allowed.
10. In view of the foregoing discussions,
the appeal succeeds and is accordingly allowed. The
impugned order is set aside. As a consequence, the
application filed by appellants (Misc. Case No. 08 of 2015)
is allowed. The Title Appeal No. 81 of 2009 is, accordingly,
restored to its original number for its hearing on merits in
Patna High Court MA No.550 of 2019 dt.08-04-2025
accordance with law. In light of the delay caused to the
present case, costs amounting to Rs. 10,000/- (Ten
Thousand rupees) is imposed on the appellant. It is expected
that the learned Appellate Court shall take steps for hearing
and disposal of appeal expeditiously.
11. Appellants are directed to appear
themselves or through their counsel before the concerned
Appellate Court on to enable the learned Appellate Court
to fix a date for hearing of the appeal on merits
uninfluenced by any observation herein on merits because
this court has not applied its mind to the merits of the
controversy in the appeal.
12. Interlocutory application, if any, shall
stands disposed of.
13. Let the Trial Court Record be
returned back to the court concerned.
(Ramesh Chand Malviya, J)
Harshita/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 11.04.2025
Transmission Date NA
