r- esnsB IN THE HON'BLE HIGH COURT OF JUDICATURE AT BILASPUR. CHHATTISGARH Miscellaneous Appeal No./-l3 of 2007 ^ APPELLANT/: [D^- .....^^ l^'-77"' ^f^s^-" y^^^" ^si--'"' RESPONDENT/: ^aintiff) ^^'Durgesh Prasad Nishad, Aged about 48 years, S/o Latel Ram Dheemar, Occupation: Government servant, posted as Supervisor in Sahkari Bhoomi'Vikas Bank, Pandaria, R/o Village: Saigona Tahsil: Kawardha, District: Kabirdham (C.G.) - Versus - <" Tangu Ram, Aged about 72 years, S/o Late Thanwar Jaisawal, Occupation: Cultivator, R/o Village: Motiyari, Tahsil: Kawardha, District: Kabirdham (C.G.) Miscellaneous appeal under Order 43 Rule 1 (t) ofthe Code of Civil Procedure ^ Q- HIGH COURT OF CHHATTISOARH AT BBASPUR MISC. APPEAL No. 43/200T APPBLLANT RESPONDIBNT Durgesh Prasad Nishad Versus Tangu Rmn ORDER Postfor-^c -2-2010 Sd/- N. K. Agarwal Judge mOH COURT OF CHHATFISQARH AT BILASP^R MISC. APPEAL No. 43/2007 APPm.LANT RESPOMDENT Durgesh Pcasad NislMd Versus TanguRam SBs- Hon. Shri N.K. Agarwal, J KRBSBNT:- Shri Malay Shrivastava, Adyocate for the appeUaait. Shri Rakesh Pandey, Advocate for respondent. O R D B R (^-2-2010) Per N.K. Affarwal, J 1. The instant appeal is directed against fhe order d^ted 22- 6-2007 passed by the District Judge, I^birdham (Kawardha) in M.J.C. No. 1/2007 whercby and whereunder, the application under Order 41 Rule 21 of C.P.C. filed by the appellant herein for re-liemTEtg of the Civil Appeal No. 2 l-A/2005 has been dtsmissed. 2. The facts of the case in brief are os under:- 3. The respondent/plaintiff filed a suit bearing Civil SiMt Na 5-A/2005 against the appellant/defendant for specific peribnnance of contract and TGCovwy ofRs. 46,300/-. The trial Court dismissed iSae smt. There-agamst appeal was preferred on 7-1-2006. The Trial Court directed issuance of notice to the appellant by ordinary mode as well as by registered post On 27-1-2006, the appeUant herem was proceeded ex parte before the AppeHate €purt In Qvil Appeal No. 21-A/2005 on the basis of endorsement of refusal upon fhe envelop sent to ftie app^lant by re&stered post aad thereafter on 27-2-2006, the AppeUate Court allowed fhe appeal filed by fhe plainttff and decrced the suit agarn.st fhe appeUant. On. 29-12-2006, the appellant herein filed an appUcation under Order 41 Rule 21 of C.P.C. along wifh affidavit for re-hearing of the appeal on the ground that fhe notice of appeal has not ^^^ ^ffcl^ ^y^ /^ -./'^ ^wy ';:"^3.^;?;^T- 6. 8. been served upon the appellant Ho retum, reply or affidavit was filed by fhe respondent. Leamed Coiirt below vide fhe order impugned disnaissed fhe said application. Hence fhis appeal. Shri Malay Shrivastava, leamed (x)unsel torihG appdUant would submit that a bare perusal offhe registered envdop which retiinied with the endorsement of refusal and by which fhe appeflant has been proceeded exparte would reveal fhat the said registered envelop was sent fca- Case No. 16-A/2005. As per fhe recoi^l, neifher process fee has been paid nor summons have been issued to (he appellant by ordinary mode as directed by fhe Appellate Court vide its order dated 7-1-2006; fhe submission offhe app^lant in fhe absence of any reply and counter affidaivit stands unrebutted and, fherefore, leamed Court below has ared in dismissing the appellant's appMcation for re-hearing of the appeal as the appeal has teen heard without due service of summons upon ftie appellant. Per eontra, Shri Rakesh Pandey, Adv. for the respondent would submit that tfae registered envelop has teen retumed wifh the endorsement of refusal of fhe Postman which is deemed service upon the appeUant aad fherefore, leamed Court below has ri^itty dismissed the applicsation. I have heard leamed counsel for the parties and pert®ed the order impugned and flae record of fhe Court below. A bare perusal of the record of the dvil Appeal No. 21- A/2005 would reveal that the Coiart has direeted for issuance of notice by ordinary mode as wieU as by re^stered post but nelther fhe respondent tias paid process fee nor the summons were issued by ca'dinary mode; the numter of appeal mentioned ta the registered envelop is not correct. The contentian raised by the appeltant in application under Order 41 Rule 21 of C.P.0. has not been controverted by fhe respondent by ffling their reply and counter affidavit. In view of fhe above, it cannot be said that the judgment and decree in appeal has been passed ex parte after due •^^,^^' % service of notice upon the appellant herein. As per Order 41 Rule 21 of C.P.C., where an appeal is heard ex pcate and judgment is pronounced against fhe respcxndent, he may apply to the Appellate Comt to re-hear the appeai; and, if he satisfies the Ctourt fhat the notice was not duly served or that he was prevented by sufiicient cause from appearing when fhe appeal was called on for hearing, the Court shaU re-hear fhe appeal on such terms as td costs or otherwise as it tihinks fit to impose upon hmi. 9. As fhe smnmons were not duly served upon the ap^Uant in the case, thCTefore, in fhe opmion of this Court, leanied Court below has wrongly dismissed the application. The application filed by the appeUant deseryes to be allowed. 10. Por fhe foregoing, the appeal prefeired by the appellaat is allowed. The matter is remitted back to fhe AppeBate Court for re-hearing of the appeal in accordance wtth law on its own merits after giving due opportunlty of hearing to bofh fhe parties. 11. Record of fhe Court below be sent back forthwith. 12. Since the matter is veiy old, it is expected fhat fhe Appellate Court shall hear and decide the appeal expeditiously. Sd/- N. K. Agarwal Judge