IN THE HIGH COURT OF JHARKHAND AT RANCHI
C.M.P. No. 120 of 2008
With
Second Appeal No. 508 of 1998 (P)
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Pano Devi and others ... ... ... ... ... Appellants
Versus
Most. Manti Devi and others ... ... ... ... Respondents
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CORAM: HON'BLE MR. JUSTICE RAMESH KUMAR MERATHIA
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For the Appellants : Mr. V. Shivnath, Senior Advocate and Manoj Kumar
Sah, Advocate.
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5. 11.12.2009
. C.M.P. No. 120 of 2008:
This petition has been filed for restoration of Second Appeal No. 508
of 1998 (P) which was dismissed on 23.7.2003.
2. The said appeal was filed at Patna on 18.11.1998. According to the
appellants, after November, 2000, when they went to Patna, they were
informed by their counsel that the new State of Jharkhand has been
created and it was not clear whether this appeal will be heard at Patna or
at Ranchi and, accordingly, they were advised to wait for some time, so
that they could be informed about the hearing of the second appeal and,
accordingly, they waited for the communication of the lawyer, but inspite
of several letters written to their counsel to know about the status of the
appeal, they did not receive any communication. When the appellants met
their counsel in January, 2008, they were told that the said appeal was
transferred to Ranchi. The appellants then rushed to Ranchi and found
that this second appeal was dismissed on 23.7.2003 for non-compliance of
the earlier orders and thereafter this petition was filed for restoration.
3. It appears from the record of the Second Appeal No. 508 of 1998 (P)
that after it was filed on 18.11.1998, the matter was taken up on 27.3.2000,
but no body appeared on behalf of the appellants. However, one month
time was allowed for filing deficit court fee. Again on 21.4.2003, no body
appeared on behalf of the appellants. However, time was granted for
depositing court fee and for filing limitation petition. On 4.7.2003, the
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matter was placed before the Bench and again no body appeared on behalf
of the appellants and the following order was passed:–
” The Deficit Court-fee has not been paid though the
appeal is not accompanied by an application under Section 5
of the Limitation Act as contemplated by Order 41, Rule 3A of
the Code of Civil Procedure and apparently not interested in
pursuing the appeal, since no steps were taken inspite of
grant of time on 21.4.2003 by the Joint Registrar.As a last chance, I grant some more time to the
appellants.The matter will be called on 18.7.2003 for orders.”
Ultimately, on 23.7.2003, the following order was passed:–” No body is present on behalf of the appellants. It
appears that this appeal was filed in Patna High Court on
18.11.1998 with stamp report. Deficit Court fee of Rs. 327.50
paise was found short and the appeal was also barred by time.
Neither deficit court fee was paid nor any petition for
condonation of delay was filed. On 27.3.2000 Registrar
General of Patna High Court granted one month’s time to pay
deficit court fee, but that order was also not complied with.
The appeal was received here on transfer from Patna High
court and thereafter on 21.4.2003 the Registrar General and on
4.7.2003, a Bench of this Court granted time for paying deficit
court fee and filing petition for condoning the delay, as a last
chance, still the appellants neither filed petition to condone
the delay nor paid deficit court fee. In such circumstance, the
memorandum of appeal is rejected as barred by time.”
4. The said explanations offered on behalf of the appellants for
condoning the delay in filing this restoration petition is not at all
satisfactory. Even according to the appellants, after filing the said appeal
on 18.11.1998, they contacted their lawyer only after November, 2000 at
Patna i.e. after two years and then they contacted their lawyer after about
seven years i.e. in January, 2008, saying that for all these years, they were
waiting for information from their counsel. In the circumstances, when I
express that no grounds have been made out for condoning the delay in
filing this restoration petition and for restoring the said appeal, Mr.
Shivnath submitted that substantial question of law is involved in this
appeal and, if the same is not restored, the appellants will suffer great loss.
Accordingly, I heard Mr. Shivnath on the merits of the second appeal to
examine whether it is worth admission or not.
Second Appeal No. 508 of 1998 (P):
This second appeal has been filed against the judgment and decree
dated 13th August, 1998 passed by the 2nd Additional District Judge, Godda
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in Title Appeal No. 42 of 1984/18 of 1998 affirming the judgment and
decree dated 17.8.1984 passed by the Subordinate Judge, Godda in Title
Suit No. 3 of 1971.
Mr. Shivnath assailed the judgment on various grounds.
The plaintiffs-appellants filed this suit for declaration of title,
confirmation of possession and in alternative, for recovery of possession of
the suit property and for recovery of Rs. 500/- towards the price of paddy
kept in the custody of the defendants-2nd party and for permanent
injunction etc.
After considering the respective cases and the evidences brought on
the record by the parties, the trial court answered the issues against the
plaintiffs and dismissed the suit. On appeal, the appellate court partially
modified the findings of the trial court in favour of the appellants, but
dismissed the suit, affirming the findings of the trial court on main issues
against the appellants.
In my opinion, no substantial question of law is involved in the
second appeal which is, accordingly, dismissed. The C.M.P. also stands
dismissed.
(R. K. Merathia, J)
AKS.Cp.2