Gumda Murmu vs Chandrai Santhal

Chandrashekhar, J. - Aggrieved by order dated 09.08.2011 in Misc. Case No. 08 of 2009, the present writ petition has been filed.

The petitioner was defendant in Title Suit No. 04 of 1999. The suit was instituted against the petitioner and the mother of one Hardi Santhal. The suit was decreed vide judgment and order dated 16.09.2002, against which Title Appeal No. 16 of 2002 was filed. It appears that the appeal was dismissed in default vide order dated 28.02.2005. The petitioner/appellant filed application dated 05.05.2009 seeking restoration of Title Appeal No. 16 of 2002. The said application which was registered as Misc. Case No. 08 of 2009 has been dismissed by the trial court.

The learned counsel for the petitioner submits that for the reasons beyond the control of the petitioner, the petitioner could not file application for restoration of Title Appeal No. 16 of 2002, within time. The petitioner was bed ridden and he had no information of the dismissal of title appeal in default.

Mr. P.A.S. Pati, the learned counsel for the respondent No. 1 raising a question of maintainability of the writ petition submits that against the impugned order passed by the appellate court, an appeal would lie under Order 43, Rule 1 (t) CPC. It is further contended that the petitioner filed the medical certificate of one Chandrai Santhal to assert that he himself was bed ridden. Controverting the plea taken on behalf of the respondent No. 1, the learned counsel for the petitioner submits that the petitioner filed medical certificate of Chandrai Santhal by mistake however, it is contended that it has not been asserted by the respondent No. 1 that the said Chandrai Santhal was not ill.

Rule 11 to Order 41 CPC refers to dismissal of appeal before its admission. Order dated 28.02.2005 indicates that Title Appeal No. 16 of 2002 was not admitted by the court. Rule 19 to Order 41 CPC provides that the appellant may prefer an application for restoration of the appeal dismissed in default for readmission.

The learned counsel for the respondent No. 1 has rightly contended that against an order dismissing the application seeking restoration of appeal, an appeal would lie under Order 43, Rule 1 (t) CPC. Though application dated 05.05.2009 was filed under Order 9, Rule 4 CPC, which was registered as Misc. Case No. 08 of 2009, I am of the opinion that in subsistence the said application was under Order 41, Rule 19 CPC. The wrong labeling of the said application is immaterial. Considering the aforesaid facts, the present writ petition is held not maintainable and accordingly, it is dismissed. However, a liberty is reserved with the petitioner to avail alternative remedy under the Code. I.A. Nos. 4812 of 2015, 4539 of 2015 and 5539 of 2015 also stand dismissed.Rs.