K.P.Singh - (1.) THIS second appeal has been directed against the judgment of Shri Ravindra Nath Misra, Vlth Additional District Judge, Azamgarh, dated 27-10-1986 in Civil Appeal No. 249 of 1985 Mumtaz Ahmad v. Hafiz Mukhtar.
(2.) SHORN of unnecessary details the disputed land in this appeal is plot no. 31 situate in Mohalla Domanpura, Kasba Maunath Bhanjan, district Azamgarh. Undisputedly the aforesaid plot belonged to one Jai Karan who had two sons, namely Ram Briksh and Jhillu. The plaintiffs appellants before this Court are the transferee from Ram Briksh whereas the defendants respondents are transferees from Jhillu. The dispute between the parties is whether the disputed plot had been partitioned between Ram Briksh and Jhillu before the execution of sale deeds by them. The plaintiffs appellants had filed the suit for injunction against the defendants respondents restraining them from interfering with the title and possession of the plaintiffs. The claim of the plaintiffs was denied by the defendants opposite parties and various other issues were raised at the instance of the defendants opposite parties. The trial court framed necessary issues and decreed the plaintiffs' suit through its judgment dated 25-5-1985. Against the judgment of the trial court the defendants had gone in appeal and the appellate court gave judgment for the defendants opposite parties as is evident from the impugned judgment dated 27-10-1986. Thereafter the plaintiffs have approached this Court under Section 100 CPC. The learned counsel for the plaintiffs appellants has contended before me that the plaintiffs did not get reasonable opportunity before the lower appellate court to press their claim and that the impugned judgment is ex-parte against them and suffers from patent errors of law, therefore, it should be set aside. The learned counsel for the defendants opposite parties has tried to refute the contentions raised on behalf of the plaintiffs appellants and his submission is to the effect that the impugned judgment is on merits and it cannot be said that the plaintiffs appellants had not been heard by the lower appellate court. The learned counsel for the defendants-respondents has also tried to seek help from the provisions of Order 17 Rules 2 and 3 of the Code of Civil Procedure and has contended that the impugned judgment is on merits and it cannnot be assailed on the ground that the plaintiffs appellants had not got sufficient and reasonable opportunity to press their claim. In this connection it has also been submitted that in appeal against the impugned judgment and decree passed by the lower court, the question of sufficiency of the cause of absence before the lower appellate court cannot be gone into by this Court. The learned counsel for the defendants opposite parties has placed reliance upon a number of decisions, such as M. Hummi v. Aziz-ud-Din, AIR 1917 All. 475 ; Madho Prasad v. Sukhdin, AIR 1925 Oudh 644 ; Brij Nath Prasad v. Bindeshwari Pd. Singh, AIR 1925 Patna 609 and Dan Bahadur Singh v. Gayadin Singh, AIR 1934 Oudh 131.
(3.) IN rejoinder the learned counsel for the plaintiffs appellants has drawn my attention to the rulings reported in Patit Pavneshwar Mahadev Ji-appellant v. Nagar Maha Palika, Kanpur- respondent, 1979 AWC 305 and it has been contended that the submission made on behalf of the defendants respondents cannot be sustained in view of the aforesaid rulings. I have examined the contentions raised on behalf of the parties and I have gone through the impugned judgment. I have a feeling that the plaintiffs appellants have not got a reasonable opportunity before the lower appellate court to press their claim. It is well known that every party to a litigation should get reasonable opportunity of addressing the Court.;