KAMLADEVI Vs. SRI MAHANAND SINGH

JUDGEMENT

(1.) -This revision application, filed by the plaintiff, is directed against the order dated 14-1-1983 passed by learned Additional District Judge in an appeal filed under Order XLIII, Rule 1 (t) of the Code of Civil Procedure (hereinafter referred to as 'the Code') whereby he has allowed the appeal, set aside the order passed by the learned Additional Subordinate Judge dismissing the application under Order XLI, Rule 19 of the Code and remanded the matter to the learned Judge for disposal of the said application after giving opportunity of adducing evidence.

(2.) Necessary facts for disposal of this application are that the petitioner filed a suit in the court of the learned Munsif. which was decreed by the trial court. Against the decree passed by learned Munsif, a title appeal was prefeered in the court of the learned District Judge, which after admission, was transferred to the court of learned Additional Subordinate Judge for disposal. The said appeal was dismissed for default under Order XLI, Rule 18 of the Code on 30-7-1979, whith was the date fixed for hearing, 88 notices to the respondents could not be served on account of failure of the appellants to take steps for service of the same upon them. Thereupon, an application under Order XLI, Rule of the Code was filed for readmission of the appeal stating therein, inter alia, that one of the appellants Mahanand Singh, who was looking after the pairvi of the appeal, had fallen ill and, as such, he could not attend the court on that date. The learned Additional Subordinate Judge dismissed the aforesaid petition and refused to readmit the appeal. The said order was challenged by preferring an appeal before the learned District Judge under Order XLIII, Rule 1 (t) of the Code which, after admission, was transferred to the court of the learned Additional District Judge. In the said appeal, an objection was taken on behalf of the present petitioner, who was respondent No. 1 there, regarding its maintainability on the ground that the appeal was maintainable only before this Court. The appellate court overruled the objection regarding maintainability of the appeal, allowed the same after setting aside the order rejecting the petition under Order XLI, Rule 19 of the Code and remanded the matter to the learned Additional Subordinate Judge for disposal of the petition under Order XLI, Rule 19 of the Code after giving an opportunity to the applicant before it to adduce evidence, as the said application was disposed of without giving an opportunity of adducing evidence. Hence this application.

(3.) A learned single Judge of this Court while admitting the revision application having felt that the point involved in this case requires an authoritative pronouncement directed the case to be placed for hearing before a Division Bench and, accordingly, this case has been placed before us.