Uttarakhand High Court
Unknown vs Layeek on 21 August, 2025
Author: Pankaj Purohit
Bench: Pankaj Purohit
Office Notes, reports, orders or
SL. proceedings or directions and
Date COURT'S OR JUDGES'S ORDERS
No Registrar's order with
Signatures
SA No.106 of 2025
Hon'ble Pankaj Purohit, J.
Mr. Rajesh Joshi, learned counsel for the
appellant
2. This is a Second Appeal, by means of which,
appellant has put to challenge the judgment and
decree dated 09.11.2021, passed by learned Civil
Judge (J.D.) Khatima, District Udham Singh Nagar in
Civil Suit No.63 of 2013, Vishanu Dev vs. Layeek
Ahmad, whereby the suit of the appellant was
dismissed as well as the judgment and order dated
31.05.2025 passed by learned Additional District
Judge, Khatima, District Udham Singh Nagar in Civil
Appeal No.46 of 2021, Vishanu Dev vs. Layeek Ahmad,
whereby the appeal of the appellant was also dismissed
on merits.
3. It is the contention of learned counsel for the
appellant that appellant has filed the Civil Appeal
No.46 of 2021 in the court of District Judge, Rudrapur,
Udham Singh Nagar on 03.12.2021. The said appeal
was fixed on 24.01.2025 for hearing, but on that day,
the matter was adjourned to 27.02.2025 by Second
Additional District Judge, Rudrapur, District Udham
Singh Nagar. However, on 19.02.2025, the Second
Additional District Judge, Rudrapur, District Udham
Singh Nagar has transferred the aforesaid civil appeal
from its court to the court of Additional District Judge,
Khatima pursuant to order dated 19.02.2025 passed
by District Judge, Udham Singh Nagar. The case was
received in the office of Additional District Judge,
Khatima on 21.02.2025 and the same was directed to
be listed on 27.02.2025.
4. Learned counsel for the appellant submits that
without serving notice of the appeal to the
appellant/parties, the appeal could not have been
heard by learned appellate court on merits, therefore, it
committed manifest error of law and fact by deciding
the appeal on merits in absence of the appellant. It is
also contended by learned counsel for the appellant
that on 21.02.2025 neither the appellant nor his
Advocate was presented before the court of learned
Additional District Judge, Khatima, Udham Singh
Nagar. The appellant had no notice of the transfer of
the case; therefore, he could not have appeared before
the appellate court.
5. Learned counsel for the appellant vehemently
argued, relying upon the provisions of Rule 89-A of the
General Rules (Civil), 1957, which clearly stipulates
that upon transfer of a case from one court to another,
notice must be given to the parties. However, in the
present matter, no such notice was issued when the
case was subsequently transferred by the order of the
District Judge, Udham Singh Nagar.
6. I have perused the Rule 89-A of the General Rules
(Civil), 1957 and perused the record. The arguments
which have been advanced by learned counsel for the
appellant appears to be convincing.
7. Appeal is admitted on the following substantial
questions of law:-
(a) Whether a suit or appeal transferred by an
administrative order from one court to another the
presiding officer of the court to whom it has been
transfer shall be responsible for inform the parties
regarding the transfer and date fixed in the matter?
(d) Whether under the provision of Order XLI Rule 17(1)
of CPC an appellate court has jurisdiction to dispose of
an appeal on merit in absence of appellant or his
counsel?
(e) Whether a lease holder of govt. land against whom
process for cancellation of lease is pending is come
under the category of true owner of land and against
such lease holder suit for injunction filed by the actual
possessory of land is maintainable?
8. Issue notice to the respondent, returnable within
six weeks.
9. Steps to be taken within seven days.
10. Summon the TCR.
11. List on 27.10.2025.
(Pankaj Purohit, J.)
21.08.2025
AK
