- (1.) Heard the parties. The appellant has filed the instant appeal against the Judgment dated 28.6.2007 passed in Misc. Case No. 6 of 2005 by Additional Judicial Commissioner No.1, Khunti rejecting the prayer of the appellant to set aside the order dated 16.7.2005 passed in T.A. No. 124 of 2003.
(2.) Case in brief is that the plaintiffs -respondents filed a Partition Suit i.e. P. S. No. 120 of 1986 which has been decreed by the Judgment dated 8.8.03 and decree dated 23.8.03. Against the aforesaid Judgment and decree, the present appellant filed a Title Appeal i.e. T.A. No. 124 of 2003. On 16.7.2005 the aforesaid appeal was fixed for hearing but the said appeal was dismissed Under Order 41 Rule 17 C.P.C. on 9.8.2005 for non-appearance of the appellant's counsel when the case was called out. Against aforesaid order dated 16.7.2005, the appellant filed a Miscellaneous petition on 9.8.2005 for re-admission/restoration of the appeal under order 41 Rule 19 C.P.C which was registered as a Misc. Case No. 6 of 2005. Thereafter, after hearing the parties, the said Misc Case was dismissed as stated above.
(3.) The learned counsel of the appellant, has submitted that the appellant was not negligent. It was only due to the reason that his counsel could not turn up when the Title Appeal No. 124 of 2003 was called out as he was engaged in another Court. It is furthersubmitted that the appellant himself also could not dare to appear in the said Court. It is further contended that the appellant is a poor, illiterate tribal.;