This appeal against the rejection of a misc. case petitioning re-admission of a default-dismissed eviction appeal was allowed to give the appellant an opportunity to ventilate her grievance on merits.
Appeal allowed. Misc. case dismissed. Eviction Appeal no.3 of 2005 re-admitted subject to payment of costs and appearance within three months.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.160 of 2011
Kishori Devi …… Appellant Versus
Ram Jee Das Kejriwal …… Respondent --------- CORAM: HON’BLE MR. JUSTICE D.N. UPADHYAY
For the Appellant : Mr.S.K.Dwivedi, Advocate For the Respondent : Mr. Rohit Roy, Advocate
11/14.09.2015 This appeal has been preferred against the order dated 18.06.2011 by which learned Additional District Judge, F.T.C.III, Palamau has rejected the Misc. case filed under Order 41 Rule 19 read with section 151 of the Code of Civil Procedure and refused to re-admit the eviction appeal, which stood dismissed for default on 15.03.2010.
It is contended that the appellant is a lady and she was suffering from various illness and therefore she could not attend the court nor she had instructed her conducting counsel. As a result she could not appear and the learned counsel had expressed before the Court “No Instruction”. In the circumstance, the eviction appeal stood dismissed for default.
As soon as the appellant could learn about dismissal of appeal, she filed petition under Order 41 Rule 19 read with section 151 CPC for re-admission of the appeal, but the Misc. Case no.1 of 2011 also stood dismissed. Learned Additional District Judge has disallowed the aforesaid Misc. Case on the ground that it was time barred and filed after delay of about ten months. The appellant shall suffer irreparable loss, if the eviction appeal is not permitted to be re-admitted.
Learned counsel for the respondents has opposed the prayer and submitted that the eviction appeal stood dismissed on 15.03.2010 after providing several adjournments for hearing. The medical reports submitted by the appellant do not appear to be genuine. As a matter of fact, the appeal was admitted on 02.06.2005 and lower court records also received and the appeal was ready for hearing, but the appellant could not appear for the reasons best known to her. The reasons assigned in the Misc Case for re-admission of the appeal were not tenable and, therefore, learned Additional District Judge has rightly dismissed the Misc. Case no.1 of 2011.
Be that as it may, for the ends of justice, opportunity is to be given to the appellant to ventilate her grievance before the lower appellate court. The grounds on which Misc. Case no.1 of 2011 has been dismissed
.2.
do not appear to be sound and tenable.
In the circumstances, this appeal stands allowed on payment of cost of Rs.one thousand to be paid to the respondents and on payment of Rs.one thousand, Eviction Appeal no.3 of 2005 shall stand re-admitted with the condition that within three months from the date of re-admission of the appeal, both the parties shall appear and extend their argument and the court shall decide the appeal on merit.
s.b.
1 issue framed by the court
Whether an eviction appeal dismissed for default can be re-admitted once the appellant claims illness prevented attendance?
Kishori Devi
Ram Jee Das Kejriwal
D.N. UPADHYAY
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
