Decided on February 07,1983



N.H.BHATT - (1.) This is an appeal by the original defendant of the regular Civil Suit No. 6 of 1974 decided by the Civil Judge (J. D.) Palanpur in his favour and against the original plaintiffs but the decree of the trial Court came to be reversed by the learned Assistant Judge at Palanpur in the respondents Civil Appeal No. 81 of 1975 in the District Court there. Being aggrieved by the said decree of reversal passed by the learned appellate Judge the original defendant the respondent in the District Court has filed the present second appeal.
(2.) . After the appeal was admitted by the District Court a notice Exhibit 6 on the record of the appellate Court came to be issued calling upon the respondent to appear before the Court on 30-9-75 on which day the appellant herein did appear. Now unfortunately the District Court as the rojnama shows did not adjourn the matter but on 10-11-75 an order was made that the record and proceedings be called for but no date was notified even in the rojnama about the hearing of the appeal on some other day. After about two years lapse that is on 27-7-77 the appeal happened to be called out before the learned Assistant Judge one Mr. B. P. Shah there the appellant herein the respondent in the District Court obviously could not have known that one fine morning his matter would be called out in the District Court and as the respondent was not present the matter was heard ex-parte presumably under Order 41 Rule 15 of the Civil Procedure Code. It is this ex-parte decree of the District Court allowing the appeal that is assailed by Miss K. M. Shah before me in this second appeal.
(3.) I have personally perused the record with the assistance of both the lady advocates appearing for the respective parties and I find that after 30-9-75 there is no endorsement of the adjournment of the hearing of the appeal. Only rojnama that is to be found is dated 10 speaking of the record of the trial court to be called for again with no further date of hearing fixed. The rojnama then records what happened after 27-7-77 which I have already referred to above. It is the grievance of the appellant that the appeal in the District Court in above view of the matter should be treated as put on the dormant file and if the Court suddenly fixed up a date without any reference to the earlier date of hearing a notice was required to be issued to the respondent particularly when he had appeared personally and was not represented by any advocate practicing in that Court. It is this clear error of law committed by the learned appellate Judge that goes to the root of the matter and vitiates the appellate judgment and decree.;

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