IN THE HIGH COURT OF JUDICATURE AT PATNA M.A. No.106 of 2009 GANESH PRASAD, S/O LATE MASNKESHWAR PRASAD, R/O BHAGAT TOLI ROAD, P.O. & P.S. & DISTRICT KISHANGANJ .. APPELLANT Versus NARAYAN PRASAD NYARA, S/O LATE HOLI LAL SAHA, R/O DAHIPATTI ROAD, P.O. & P.S. & DISTRICT KISHANGANJ .. OPPOSITE PARTY/ RESPONDENT **** /6/ 12 August 2010 Heard the learned counsel for the parties. 2. This Miscellaneous Appeal is directed against the order, dated 23.12.2008, passed by Additional Sessions Judge, Kishanganj, in Miscellaneous Case No. 1 of 2007 by which he has rejected the petition under Order XLI Rule 19 read with Order IX Rule 9 and Section 151 of the Civil Procedure Code. 3. The brief fact is that the plaintiff filed a suit for eviction of the defendant which was numbered as Eviction Suit No. 4 of 1994. The said suit was dismissed on merits and against the judgment and decree passed in the said suit an Eviction Appeal No. 1 of 1997 was filed before the District Judge, Purnia. However, the said eviction appeal, during the pendency before the District Judge, Purnia, was transferred to Fast Track Court, III, Kishanganj, and by 2 order, dated 18.08.2006, the said eviction appeal was dismissed for default. 4. Against the said order of dismissal of default a restoration petition was filed before the District Judge, Purnia, bearing Misc. Case No. 39 of 2007 on 20.02.2007, making out a case that the appellant learnt on 31.01.2007 from his counsel that the case has been transferred from Purnia to Kishanganj and no information was given to the appellant and on inspection it was learnt on 31.01.2007 that the case was dismissed for default. Thereafter, after obtaining the certified copy the order a restoration petition, bearing Misc. Case No. 39 of 2007, was filed before the District Judge, Purnia. However, the case was withdrawn in view of the fact that the case was dismissed for default by Fast Track Court at Kishanganj and so to prefer a restoration petition before that Court the said restoration petition, Misc. Case No. 39 of 2007, was allowed to be withdrawn by the District Judge, Purnia, and after withdrawal of Misc. Case No. 39 of 2007 a petition was preferred before the Fast Track Court on 24.07.2007 and the said petition was numbered as Misc. Case No. 1 of 2007 and the Additional 3 Sessions Judge, Kishanganj. 5. By the impugned order Additional Sessions Judge, Kishanganj, rejected the petition under Order XLI Rule 19 read with Order IX Rule 4 and Section 151 of the Civil Procedure Code on the ground that the appellant left pairvi in the appellate Court and on 24.08.2005 it was transferred to Kishanganj where no pairvi was done on behalf of the appellant and, ultimately, the appeal was dismissed for default on 18.08.2006 and explanation given by the appellant that he had no knowledge about the appeal is a lame excuse and, hence, dismissed the restoration petition. Against the impugned order the appeal has been preferred. 6. The learned counsel for the appellant, however, contends that admittedly the case was transferred from Purnia to Kishanganj and no notice given to the appellant and the appellant learnt on 31.01.2007 and, thereafter, he got the record inspected, obtained certified copy and filed the petition under Order XLI Rule 19 of the Civil Procedure Code on 20.02.2007 before the District Judge, Purnia, bearing Msc. Case No. 39 of 2007 and it was withdrawn to 4 prefer the petition before the appropriate forum from where the case was dismissed for default at Kishanganj and subsequently filed a petition before Kishanganj and contends that the learned appellate Court below observed that the appellant was not doing pairvi at Purnia during the pendency of appeal there taken also in consideration the absence of appellant before Purnia Court whereas the Court is only required to look into the cause of non-appearance of the appellant on the date on which the case was dismissed for default and not about laches at earlier occasion and even required to consider whether appellant gave explanation for the non-appearance on the day when case was dismissed that it whether has shown sufficient cause for non- appearance on the date of dismissal and not required to give explanation for his default for earlier occasion. 7. The learned counsel for the respondent, however, contends that the suit was filed in 1996 and the appellant was not attending the Court and doing paprvi as observed by the lower Court and, hence, is being harassed and, further, contended that earlier the petition was filed before the District Judge, Purnia, which was withdrawn and 5 after withdrawal subsequently the petition was filed before the Additional District Judge, Purnia, from where the case was dismissed in default and, hence, contended that since once the petition filed before the District Judge under Order XLI Rule 19 of the Civil Procedure Code which was withdrawn and, hence, submits that the subsequent petition before the Additional District Judge amounts to resjudicata. 8. However, on the respective submissions of the parties question for consideration whether the impugned order is sustainable in law as whether appellant has shown sufficient cause for his non-appearance of the date of disposal and whether earlier withdrawal of criminal miscellaneous amounts to resjudicate. 9. However, the learned counsel for the appellant has relied upon decision reported in A.I.R. 1977 Pat, 131 (Kishore Kumar Agarwal Vrs. Basudeo Prasad Gutgutia & Anr.), that case has been transferred from one Court to another then the notice of transfer is must by transferor Court to the parties. The appellant has asserted that he has got no notice and no counter to this point of pleading has been challenged, hence, it can well be held that the appellant 6 has no notice about the transfer of the case. 10. However, it is true that in case of dismiss for default the relevant consideration is whether the appellant has shown sufficient cause for his non-appearance on the day on which the case was dismissed and any consideration that the appellant has defaulted in his appearance on dates prior to the date of default or dismissal is an extraneous consideration. However, the appellant gave explanation that case transferred from Court of District Judge, Purnia, to the Court of Additional District, I, Judge, Fast Track Court, Kishanganj, without notice and, hence, was present by sufficient cause to appear as o notice was issued to him is explanation so the impugned order passed rejecting the petition under Order XLI Rule 19 of the Civil Procedure Code is on extraneous consideration that appellant used to absent even prior to the date of dismissal at Purnia and, hence, impugned order is set aside. 11. Hence, the explanation of the appellant that he had no knowledge is valid and accepted and it is true that the learned lower Court did not consider this fact and, hence, impugned order is set aside as appellant gave 7 sufficient explanation for his absence on the date of dismissal. 12.The next question raised is that since the petition under Order XLI Rule 19 of the Civil Procedure Code filed before the District Judge, Purnia, and which was withdrawn with a liberty file it before the Additional District Judge, Kishanganj, which was allowed and in these circumstances there is no question of application of resjudicata. Moreover, the matter was not decided by the District Judge on merits and withdrawal with permission to file petition before appropriate Court would not amount to resjudicata. But the point about resjudicata falls to ground. 13. However, there is delay in filing the petition before the Court of Additional District Judge I, Fast Track Court, Kishanganj of his withdrawing the case from the Court of District Judge, Purnia, but, having regard to the interest of justice that the procedure may not come in the way of substantial justice. Hence, the impugned order is set aside and petition under Order XLI Rule 19 of the Civil Procedure Code is allowed, condoning the delay in filing the petition, however, subject to a cost of rupees two 8 thousand to the respondent and the Eviction Appeal No. 1 of 1997 is restored to it’s original position. However, the parties are directed to appear in Eviction Appeal No. 1 of 1997 in lower appellate Court within a month and the lower Court shall dispose off the appeal preferably within six months from the date of appearance of the parties. Cp:2/S.A. ( Gopal Prasad, J. )