DEOKI NANDAN PRASAD, J. - (1.) THIS Misc. Appeal is directed against the order dated 23.1.1993 passed by 4th Addl. Judl. Commn. Ranchi in Misc. Case No. 1 of 1982 arising out of Title Appeal No. 76/78 29/80 whereby and where under the learned Addl. Judl. Commissioner dismissed the Miscellaneous case.
(2.) SHORT facts giving rise to this appeal is that the respondent No. 1 filed Title Appeal No. 76 of 1978. No notice of the said Misc. Case was ever tendered or served either through the process server to the petitioner or the proforma defendants Nos. 2 to 5. The said Misc. Case was allowed and the appeal was admitted ex -parte which was numbered as Misc. Case No. 76 of 1978. It is further stated that no notice of the said appeal was either tendered or served upon the petitioner/ appellant. The appeal was heard ex -parte which was allowed by the judgment dated 3.7.1982 by the learned 3rd Additional Judicial Commissioner, Ranchi. Thereafter the petitioner/appellant rushed to Ranchi and got the matter enquired into and got the record of Title Appeal No. 76 of 1978 and inspected through their lawyer. It was detected that the appeal was filed against the judgment and decree dated 7.8.1976 passed by Shri R.C. Srivastava, 3rd Addl. Subordinate Judge, Ranchi in Title Suit No. 132 of 1965. Thereafter the petitioner/appellant filed an application under Order XLI Rule 21 read with Section 151 of the Code of Civil Procedure for setting aside the ex -parte decree and after hearing the appeal, the learned Court below dismissed the Misc. case without appreciating the actual fact and evidence collected on record. Mr. Debi Prasad, the learned Senior Counsel for the appellant submitted at the very outset that the Court below committed error in dismissing the Misc. Case presuming that Shri Bansi Babu and Shri B. Swaroop were the counsels for the appellant/respondent in the appeal but none of them had filed any vakalatnama in the said appeal and so there was nothing material to indicate that both the learned counsels named above had ever appeared on behalf of the appellant/respondent in the lower appellate Court. It is also submitted that no notice or summons was ever served upon the appellant in respect of the said appeal and further more the Courts order dated 19.6.1980 shows that no service report was received and, therefore, Nazir was asked to file the service report. But even then the lower appellate Court heard the appeal ex -parte without service of notice validly. It is further submitted that the Court below relied upon some of the petitions Ext. 2 series which were said to have been filed by the learned counsels Shri Bansi Babu and Shri B. Swaroop Babu but those petitions would indicated about giving information to the Court that the respondent/appellant have not yet been noticed or informed as they are residing in remote/village as well as the entire documents are lying with the appellant/respondent. Therefore those petitions cannot be taken as appearance of the learned counsels on behalf of the appellant/respondent. He also relied upon a case reported in 1993 Vol III, PLJR 443. On the other hand. Mr. A.K. Sahani, the learned counsel appearing on behalf of the respondents contended before me that the appellants were fully aware about the appeal and they avoided to appear in the said appeal and, therefore, the Court below has rightly passed the order. It is further submitted that both the learned counsels, namely Shri Bansi Babu and Sri B. Swaroop had appeared from the side of the appellant and they had also filed petitions which will go to show that they had appeared from the side of the appellant and. therefore, there is no illegality in the impugned order.
(3.) IT is apparent from the order dated 19.6.1980 that no service report was received. It is further clear from the said petitions Exts. C series that those petitions were filed giving information to the Court that the entire documents are lying with the appellant/respondent who has not yet been informed as he has been residing in the interior area. It is an admitted position that none of the lawyers had filed any vakalatnama on behalf of the appellant in the lower appellate Court. Moreover the entries documents said to have been lying with the appellant which were taken back after judgment in the trial Court. There appears no material on the record to show that notice or summons had ever been served upon all the appellant/ respondent.;