Bench: K.S. Radhakrishnan, Dipak Misra
Facts:
The respondent initiated civil action for injunction to restrain the defendant therein from selling or otherwise transferring the suit land towards the southern side of the house and further to permanently injunct him to make any construction on the land in dispute. After the written statement was filed, a counter claim was put forth by the defendant. Thereafter, issues were framed and the parties adduced evidence to substantiate their respective stands. On 12.9.1997, the learned Civil Judge (Junior Division) Nohar, District Hanumangarh, Rajasthan dismissed the suit and decreed the counter claim filed by defendant-petitioner herein. Being grieved by the aforesaid judgment and decree, the first respondent preferred Civil First Appeal No. 59 of 1997 in the Court of the concerned Additional District Judge, Nohar who, on 10.07.2001 dismissed the appeal. The dismissal of appeal compelled the respondent to file a Civil Second Appeal No. 207/2001 in the High Court of Judicature of Rajasthan at Jodhpur. This appeal was dismissed as the appellant failed to appear. After the appeal was dismissed, the appellant filed for an application for restoration in 2004.
After the formality of restoration was over breaking the artificial arrest of time, when the file moved like a large python, the appeal was listed before the court for on which day the learned counsel for the appellant commenced the argument and ultimately sought adjournment. The matter stood adjourned. Thereafter, an application under Section 100 (5) read with Order 41, Rule 2 Code of Civil Procedure was filed by the appellant and opportunity was granted to the counsel for the respondent, the plaintiff therein, to file reply to the same and the matter was directed to be listed after two weeks. As the order sheet would further uncertain the appeal was listed . And in the meantime, the respondent had filed an application under Order 41 Rule 27 read with Section 151 of CPC.when the matter was listed for admission, the Court directed that the matter shall be listed for admission and all the applications would be considered on that date.
Issue:
1. Whether the second appeal could be entertained by the High Court
Contentions raised by the Appellant:
The appellant contended that there was no substantial question of law involved and the High Court had no reason to entertain the second appeal only on the factual score.
Judgment:
The court held that the High court should not have shown indulgence of such magnitude by adjourning the matter when the counsel for the appellant was not present. It is difficult to envision why the Court directed fresh notice to the appellant when there was nothing suggestive for passing of such an order. The matter should have been dealt with taking a recourse to the provisions in the Code of Civil Procedure.
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