Bimal Kumar and Another vs Sakunatala Devi and Others

Ramesh Kumar Merathia, J.—This appeal has been filed against the order dated 3.10.2008 passed by learned Additional Judicial Commissioner, FTC - VI, Ranchi in Misc. Case No. 1 of 2004 which was filed by the appellants under Order XLI Rule 19 read with Section 151 of the CPC for re-admission of the Title Appeal No. 109 of 1994.

Mr. P.K. Prasad, learned senior counsel appearing for the appellants submitted that the said appeal was dismissed for non-compliance of order dated 20.12.2003, which was to be complied on 7.1.2004, but the appeal was dismissed on 6.1.2004, and moreover the whole appeal could not be dismissed and at best it could be dismissed only against non-appearing respondents; that the earlier conduct of the appellants could not be taken into consideration; that two witnesses were examined by the plaintiffs-appellants to show that they were under the impression that the date fixed is 7.1.2004 and not 6.1.2004.

Mr. B.K. Prasad, learned Counsel appearing for the respondent Nos. 1 to 5 and Mr. A.K. Das, appearing for the respondent Nos. 7 and 58 supported the impugned order and submitted that the appellants are interested only in lingering the matter and harassing the respondents who are already before the court for last several decades.

It is true that the suit was filed by Late Kishori Lal Kasera far back in the year 1973 and it was dismissed in 1994, and the said appeal is pending since 1994 for appearance of some of the respondents; and inspite of several orders, the appellants did not take steps for service of notice on non-appearing respondents, but it is also true that the entire appeal could not be dismissed even if the date fixed for taking steps was 6.1.2004 and it could be dismissed only against non-appearing respondents. Moreover, the witnesses examined on behalf of the appellants said that they were under the impression that the date fixed was 7.1.2004 and then immediately on 16.1.2004, the appellants filed this petition for re-admission of the appeal being Misc. Case No. 1 of 2004.

In these circumstances, I am inclined to extend the date of compliance of the order dated 20.12.2003 to 30.11.2009 and consequently restore the appeal. Learned Counsel appearing for the parties agreed that this appeal can be disposed of, in the absence of non-appearing respondents, as the Court has power to extend the time for compliance of order.

Accordingly, the impugned order is set aside and Title Appeal No. 109 of 1994 is restored to its original file. The appellants are directed to comply with the order dated 20.12.2003 passed in T.A. No. 109 of 1994 on 30th November 2009, on which date the parties are directed to appear before the learned lower appellate court at 11:00 A.M.

The court below will see that the process of publication/service of notice etc. is completed as soon as possible and preferably within two months thereafter and the appeal is heard on the day to day basis and is disposed of expeditiously and preferably within two months from the date of acceptance of service of notices. The parties are directed to cooperate in all respects before the learned lower appellate court in early disposal of the appeal.

However, in view of past conduct of the appellants, this order is subject to payment of cost of Rs. 10,000/- to the respondent Nos. 1 to 5 within two weeks from today, failing which this order shall automatically stand recalled.

Till 30th November 2009, status quo as on today shall be maintained by the parties.

With these observations and directions, this appeal stands disposed of.