- (1.) HEARD learned counsel for the parties and perused the order passed by Additional District Judge, III, Giridih in Misc. Case No. 1/2003 whereby he has dismissed the appiication filed by appellant (respondent) under Order XLI Rule. 21 of the Code of Civil Procedure.
(2.) PLAINTIFF -respondent filed suit being Title Suit No. 88/96 for a decree of perpetual injunction and restoration of possession of the suit property. The suit was dismissed, on contest, by Sub -Judge, Giridih. Plaintiff -respondent filed appeal being Title Appeal No.17/1998 in the court of District Judge, Giridih. However, the appeal was eventually transferred to Additional District Judge, Giridih. For non -appearance of the appellant (respondent), the appeal was heard ex parte and the same was allowed. Consequently, the suit was decreed. After coming to know about the disposal of the appeal, the appellant immediately rushed to the court and enquired into the matter, obtained certified copy and found that for non -appearance of the counsel, the appeal was heard and disposed of ex parte. Accordingly, application was filed for re -hearing of the appeal, which was registered as Misc. Case No. 1/03. The Court below after hearing the parties held that the appellants failed to prove that they have been prevented by sufficient cause to appear in the court when the appeal was called for hearing. In the instant case, as noticed above, the appellant who was respondent in the appeal appeared on 20.11.98. Counsel for the appellant made pairavi on 23.9.2000, thereafter on 16.6.2001 record of Title Appeal was transferred from the Court of District Judge, Giridih to the Court of Additional District Judge, Giridih. The advocate appearing for the appellant, however, did not take any steps and consequently appeal was taken up for ex parte hearing. The Court below noticed that the order -sheet of the appeal was shown to the lawyer concerned but the lawyer who was appearing for the appellant was not actually shown the order -sheet.
(3.) BE that as it may, admittedly because of the laches and negligence on the part of the lawyer appearing for the appellant, the appeal was taken up for ex parte hearing. For the ends of justice, therefore, for the negligence of the counsel, the parties may not be put to substantial loss and irreparable injury. As noticed above, suit was dismissed on contest but only because of non - appearance of the counsel for the appellant, the appeal was taken up fa ex parte hearing. For the ends of justice, therefore, it is fit case where the appeal should be decided on merit.;