# Santosh Kumar & Ors v. Jagat Narayan & Ors

- **Citation:** (2023) 3 ILRA 12
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-14
- **Case number:** First Appeal From Order No. 23 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/santosh-kumar-ors-v-jagat-narayan-ors-49219
- **Pages:** 7

## Headnote

Civil Law - Civil Procedure Code - Order -
41 - Rule - 17, 19: - Appeal - challenging the
order passed by appellate court - whereby court
below dismissed the application proffered under
Order 41 Rule 17 of CPC moved by Plaintiff
Appellants - Suit for permanent injunction -
dismissed by trial court - Civil Appeal -
dismissed-in-default - Application for restoration
- rejected, by Appellate court, on the ground
that several dates were fixed by the court which
was
in
the
knowledge
of
counsel
of
plaintiffs/appellants
as
well
as
plaintiffs/appellants, but they were absent and
non-appearance was not bona-fide and genuine
- it is settled law that court should have taken
the sympathetic and liberal view to do
substantial justice while deciding application
instead of taking technical view in the matter
while disseminating substantial justice - court,
on the interpretation of the word "was
prevented
by
any
sufficient
cause
from
appearing" - held that, where any party does
not approach the court with the clean hand and
with true facts and files an application to get the
order of dismissal in the default set aside on a
ground which was not made out from the
record, and the ground has been set up with an
intention to befool or defraud the court, the
court should not come in aid to such a party to
allow him to reap the fruits of false and frivolous
explanation to get the order in favour, as done
in present case - in such view of the fact,
present appeal is dismissed. (Para - 29, 31, 32)

Appeal Dismissed. (E-11)

List of Cases cited:

Atar Singh & ors. Vs Lotan Singh & ors. AIR
1992 All. 59.

## Text

12 INDIAN LAW REPORTS ALLAHABAD SERIES
Ram Yadav has already been acquitted
disbelieving the prosecution evidence. The
evidence against the revisionist-accused is
the same.

12. The impugned order reveals that
learned trial court has assessed only the
evidence recorded before it. It has not taken
into consideration every facts and material
available on record. The impugned order
has been passed in a cavalier manner
without appreciating entire facts and
circumstances of the case. It does not
satisfy the test laid down for exercising
powers under Section 319 Cr.P.C. So, the
impugned order is not sustainable in the
eye of law.

13. Accordingly, this criminal revision
is allowed. The impugned order dated
15.05.2019 passed by Additional Session
Judge/Special Judge (POCSO Act), Court
No.8, Allahabad in Session Trial No.793 of
2015 (State Vs. Lallu Ram and others)
arising out of Case Crime No. 273 of 2015
under Section 302 I.P.C., Police Station
Handiya, District Prayagraj/Allahabad is
hereby set aside.
----------
(2023) 3 ILRA 12
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.12.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

First Appeal From Order No. 23 of 2021

Santosh Kumar & Ors. ...Appellants
Versus
Jagat Narayan & Ors. ...Respondents

Counsel for the Appellants:
Sri Anil Kumar Sharma, Sri Ajay Mishra, Sri
Kapil Kumar, Sri Krishna Mishra, Sri S.K.
Mishra

Counsel for the Respondents:
Sri Sangam Singh, Sri Krishan Mohan
Mishra

Civil Law - Civil Procedure Code - Order -
41 - Rule - 17, 19: - Appeal - challenging the
order passed by appellate court - whereby court
below dismissed the application proffered under
Order 41 Rule 17 of CPC moved by Plaintiff
Appellants - Suit for permanent injunction -
dismissed by trial court - Civil Appeal -
dismissed-in-default - Application for restoration
- rejected, by Appellate court, on the ground
that several dates were fixed by the court which
was
in
the
knowledge
of
counsel
of
plaintiffs/appellants
as
well
as
plaintiffs/appellants, but they were absent and
non-appearance was not bona-fide and genuine
- it is settled law that court should have taken
the sympathetic and liberal view to do
substantial justice while deciding application
instead of taking technical view in the matter
while disseminating substantial justice - court,
on the interpretation of the word "was
prevented
by
any
sufficient
cause
from
appearing" - held that, where any party does
not approach the court with the clean hand and
with true facts and files an application to get the
order of dismissal in the default set aside on a
ground which was not made out from the
record, and the ground has been set up with an
intention to befool or defraud the court, the
court should not come in aid to such a party to
allow him to reap the fruits of false and frivolous
explanation to get the order in favour, as done
in present case - in such view of the fact,
present appeal is dismissed. (Para - 29, 31, 32)

Appeal Dismissed. (E-11)

List of Cases cited:

Atar Singh & ors. Vs Lotan Singh & ors. AIR
1992 All. 59.

(Delivered by Hon'ble Saral Srivastava, J.)
3 All. Santosh Kumar & Ors. Vs. Jagat Narayan & Ors.
13

1. Heard learned counsel for the
appellants and learned counsel for the
respondents.

2. The appellants have preferred the
present appeal challenging the order dated
15.12.2018 passed by the Additional
District Judge/F.T.C., Court No.2, Auraiya,
whereby he has dismissed the application
under Order 41 Rule 17 of C.P.C. of the
plaintiffs/appellants

3. The facts, in brief, are that one Ram
Swaroop Shukla had instituted an original
suit no.17 of 2004 praying for a decree of
permanent
injunction
restraining
the
defendants/respondents from interfering in
the
peaceful
possession
of
the
plaintiffs/appellants. It appears that during
the pendency of the suit, Ram Swaroop
Shukla
had
died
and
the
plaintiffs/appellants have been substituted
as his heirs.

4. As per the plaint case, one Ram
Swaroop Shukla purchased a plot situated
at Mohalla Hariganj, town and area
Achhalda,
Pargana
Vidhuna,
District
Auraiya which has been described at the
foot of the plaint (hereinafter referred to as
'suit property') from one Heera Lal S/o
Bhikari Lal on 25.12.1948 for a sale
consideration of Rs.300/- and he got
possession
over
the
suit
property.
Thereafter, he applied for the sanction of
the map to the Nagar Panchayat Acchalda
which was sanctioned by the Nagar
Panchayat as per law.

5.
Subsequently,
the
plaintiffs/
appellants constructed a house for his
residence and his name was recorded in
Nagar Panchayat. The plaintiffs/appellants
started depositing house tax and other
taxes. Further case of the plaintiffs/
appellants
was
that
the
defendant/
respondent no.1 was his brother and
required a house in Acchalda for residence.
The plaintiffs/appellants permitted the
defendant/respondent no.1 to stay in the
suit property. It was the further case of the
plaintiffs/appellants
that
the
plaintiffs/appellants used to give money to
his brother defendant/respondent no.1 to
deposit taxes with the Nagar Panchayat, but
his brother in collusion with the clerk of
Nagar Panchayat got his name recorded in
the
Nagar
Panchayat.
When
the
plaintiffs/appellants came to know about
the illegal act of defendant/respondent no.1,
he submitted an application in Nagar
Panchayat on 22.02.2000 for removal of
the name of the defendant/respondent no.1
from the record and restore his name. As
per the plaint case, the plaintiffs/appellants
are in possession of the suit property and
the defendants/respondents based on the
forged sale deed were interfering with the
peaceful possession of plaintiffs/appellants
which gave rise to the cause of action to the
plaintiffs/appellants to institute suit.

6. The said suit was contested by the
defendants/respondents
denying
the
allegations of the plaint. The said suit of the
plaintiffs/appellants was dismissed by the
trial court vide judgement and order dated
01.10.2013.

7. Feeling aggrieved by the judgement
and order dated 01.10.2013 passed by the
trial
court,
the
plaintiffs/appellants
preferred Civil Appeal before the District
Judge, Auraiya which was registered as
Civil Appeal No.19 of 2013.

8. The aforesaid appeal was dismissed
in default by the appellate court vide order
dated 24.11.2017. The plaintiffs/appellants
filed an application on 12.12.2017 under
14 INDIAN LAW REPORTS ALLAHABAD SERIES
Order 41 Rule 17 of C.P.C. (Santosh
Kumar and Others Vs. Jagat Narayan) for
setting aside the order dated 24.11.2017 in
Civil Appeal No.19 of 2013 and re-admit
the appeal and hear the appeal on merit.

9. The plaintiffs/appellants stated in
the said application that Santosh Kumar
was the Pairokar of the case. He met with
an accident in July and suffered grievous
injury in the accident due to which he
underwent surgery. It was further stated
that as his operation was not successful,
therefore, he was again operated due to
which he was unable to move, and for this
reason, he could not attend the case. It was
further stated that when he came to the civil
court on 08.12.2017, he enquired about the
status of the appeal and came to know that
the appeal has been dismissed in default on
24.11.2017, and immediately, he filed the
present application for restoring the case.

10. The defendant/respondent no.1 filed
an
objection
to
the
application
of
plaintiffs/appellants under Order 41 Rule 17
of C.P.C. denying the averments made in the
said application. It was further stated that
there are six plaintiffs/appellants in the appeal
and any of them could attend the case on the
date fixed i.e. 24.11.2017. It was further
stated that Santosh Kumar was fit and fine on
the date fixed. The defendants/respondents
further stated that the medical certificate filed
by Santosh Kumar was not genuine. The
averments made in the application are vague
inasmuch as Santosh Kumar has not stated in
the application the date on which he had been
operated upon second time. Consequently, it
was prayed that the application under Order
41 Rule 17 of C.P.C. may be dismissed.

11. The appellate court vide order
dated 15.12.2018 rejected the application
under Order 41 Rule 17 of C.P.C. on the
ground that several dates were fixed in the
appeal which was in the knowledge of the
counsel of the plaintiffs/appellants as well
as plaintiffs/appellants. The appellate court
recorded that the counsel of the plaintiffs/
appellants had also knowledge about the
date fixed i.e. 24.11.2017 in the appeal, and
if for any reason, the plaintiffs/appellants
were absent, it was the duty of the counsel
to attend the court and argue the appeal.
The appellate court recorded that the order
sheet reveals that on earlier dates also,
neither the plaintiffs/ appellants nor their
counsel appeared and the case was
adjourned in their absence.

12. The appellate court further found
that as per the averments in the application
under Order 41 Rule 17 of C.P.C., Santosh
Kumar met with an accident in July 2017
whereas
the
prescriptions
relating
to
treatment
filed
on
record
was
dated
14.06.2017, and the application of Santosh
Kumar was silent as to the date on which he
had been operated second time. The appellate
court further found that the non-appearance
of the appellant was not bone fide and
genuine, consequently, it dismissed the
application under Order 41 Rule 17 of C.P.C.

13. Challenging the order, learned
counsel for the plaintiffs/appellants has
contended that the non-appearance of the
plaintiffs/appellants on the date fixed in the
civil appeal was bona fide and genuine, and
the plaintiffs/appellants have demonstrated
that they were prevented by sufficient cause
from appearing on the date fixed in the
appeal, therefore, the appellate court should
have
allowed
the
application
of
plaintiffs/appellants under Order 41 Rule
17 of C.P.C. and restored the appeal.

14. It is submitted that Santosh Kumar,
who was doing the parivi in the case met
3 All. Santosh Kumar & Ors. Vs. Jagat Narayan & Ors.
15
with an accident and was operated upon
due to which he was incapable to move,
therefore, in such circumstances, it was
established
that
non-appearance
of
plaintiffs/appellants on the date fixed in the
appeal was bona fide, therefore, the
appellate court should have taken the
sympathetic and liberal view to do
substantial
justice
in
deciding
the
application instead of taking a pedantic and
over technical view in the matter. Thus, it is
contended that the appellate court has
committed manifest illegality in rejecting
the application which needs to be corrected
by this Court in appeal. In support of the
said submission, learned counsel for the
plaintiffs/appellants has placed reliance
upon the judgement of this Court in the
case of Atar Singh and Others Vs. Lotan
Singh and Others AIR 1992 All. 59.

15. Per contra, learned counsel for the
respondents has contended that there is no
quarrel with the legal proposition advanced
by
the
learned
counsel
for
the
plaintiffs/appellants that the court in
deciding the application under Order 41
Rule 17 of C.P.C. read with Rule 19 of
C.P.C. should take a liberal view and
technicalities should not come in the way
of court to do substantial justice. He
submits that in the instant case, the said
principle is not attracted inasmuch as it is
evident from the record that a false case in
the application under Order 41 Rule 17 had
been set up by the plaintiffs/appellants to
get the order dated 24.11.2017 set aside.

16. He further submits that in filing
the application under 41 Rule 17 of C.P.C.,
the plaintiffs/appellants should come with
clean hand and with true facts whereas in
the instant case, grounds stated in the
application
that
Santosh
Kumar
had
suffered injuries in an accident in July 2017
and was operated upon, and since his
operation was not successful, therefore, he
underwent surgery second time is a false
story for two reasons; the application is
silent as to the date on which Santosh
Kumar was operated upon second time;
secondly, all the prescriptions about the
treatment of Santosh Kumar filed on record
were dated 14.06.2017 and no prescription
in respect to the treatment of Santosh
Kumar of the month of July was filed nor
any document was brought on record
indicating that Santosh Kumar underwent
surgery second time in the month of July.

17. He further submits that in paragraph
7 of the counter affidavit, it has been
specifically averred that the story stated in the
application under Order 41 Rule 17 of C.P.C.
is false inasmuch as Santosh Kumar had filed
an affidavit sworn on 27.10.2017 in the
original suit no.189 of 2012, and if the
averments made in the application of the
plaintiffs/appellants was taken to be true, then
how he could file an affidavit dated
27.10.2017 in Original Suit No.189 of 2012.
He further stated that the copy of the affidavit
of Santosh Kumar dated 27.10.2017 in
Original Suit No.189 of 2012 is enclosed as
annexure 4 to the counter affidavit. Thus, it is
submitted that as the appellants had not
approached the court with clean hand and the
averments made in the application under
Order 41 Rule 17 of C.P.C. are false and had
been made only to get the order dated
24.11.2017 set aside, the plaintiffs/appellants
have
failed
to
demonstrate
that
the
plaintiffs/appellants
were
prevented
by
sufficient cause from appearing on the date
fixed in the appeal. Thus, the appellate court
has rightly dismissed the appeal.

18. I have considered the rival
submissions of the parties and perused the
record.
16 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The facts as emanate from the
record reveal that the suit had been
instituted by one Ram Swaroop Shukla
against defendants/respondents praying for
a decree of a permanent injunction. The suit
was dismissed on 01.10.2013. During the
pendency of the suit, Ram Swaroop Shukla
died and plaintiffs/appellants have been
substituted as his heirs.

20. The plaintiffs/appellants preferred
Civil Appeal No.19 of 2013 against the
order dated 01.10.2013 dismissing the suit.
The appeal was dismissed in default on
24.11.2017 for want of the appearance of
plaintiffs/appellants.
The
plaintiffs/appellants filed an application
under Order 41 Rule 17 of C.P.C. stating
therein
that
Santosh
Kumar
plaintiff/appellant no.1 was doing the pairvi
in the case and he could not appear on the
date fixed i.e. 24.11.2017 as he had met
with an accident in July 2017, and in the
said accident, he suffered grievous injuries
and he was operated, but since his
operation was not successful, therefore, he
was again operated and as he was unable to
move, therefore, he could not attend the
court on the date fixed which led the court
to pass an order to dismiss the appeal in
default.

21. The question as to whether the
reasons given in the application under
Order 41 Rule 17 of C.P.C. of the
plaintiffs/appellants for non-appearance can
be said to be the sufficient cause that
prevented the plaintiffs/appellants from
appearing on the date fixed in the appeal
invites the attention of this Court in the
instant appeal.

22. Prima facie reading of the
application depicts a picture that the
reasons stated in the application under
Order 41 Rule 17 of C.P.C. would fall in
the ambit of 'sufficient cause' which
prevented
plaintiffs/appellants
from
appearing on the date fixed in the case, but
the record speaks otherwise.

23. The plaintiff/appellant no.1 has
stated in the application that he had
suffered grievous injuries in the accident in
the month of July 2017 and he was
operated upon, but as his operation was not
successful, therefore, he again underwent
surgery. There is no averment in the
application as to the date on which, he was
operated upon second time. Further, the
prescriptions filed regarding the treatment
of Santosh Kumar were dated 14.06.2017
which were before the month of July 2017,
and no prescription of the month of July
2017 was filed on record indicating that he
was suffering from injury and was operated
upon second time in the month of July.

24.
The
appellate
court
while
dismissing the application has noted the
said fact.

25.
In
the
present
appeal,
the
prescriptions relating to the treatment of
Santosh Kumar had been appended from
pages
120
to
123
by
the
plaintiffs/appellants which reveals that all
prescriptions are before July 2017.

26. The medical certificate appended
on page no.120 to 123 dated 14.06.2017
issued by Dr. D.K. Dubey reveal that
Santosh Kumar was advised for three and
half months bed rest. The record reveals
that the said certificate was not proved.
Even otherwise, if the said certificate is
taken to be true and correct, Santosh
Kumar became fit after three and half
months which is the last week of
September 2017. It is further pertinent to
3 All. Santosh Kumar & Ors. Vs. Jagat Narayan & Ors.
17
note that the defendants/respondents had
filed an affidavit of Santosh Kumar dated
27.10.2017 in Original Suit No.189 of 2012
which indicates that Santosh Kumar was
hale and hearty in October 2017. Thus, the
averments made in the application that
Santosh Kumar was not fit due to injuries
suffered in the accident on the date fixed in
the appeal are false and incorrect.

27.
Learned
counsel
for
the
plaintiffs/appellants
has
invited
the
attention of the Court to paragraph 7 of his
reply to the counter affidavit of the
defendant/respondent nos.2 to 5 wherein it
is stated that Santosh Kumar did not appear
on the date fixed i.e. 27.10.2017 in the
Original Suit No.189 of 2012. He further
placed reliance upon paragraph 8 of the
affidavit wherein it has been stated that he
(Santosh Kumar) was not aware of the
affidavit dated 27.10.2017, whereas, on the
other hand, he stated that it appears that it
was sworn by somewhere else. It is
pertinent
to
note
that
the
plaintiffs/appellants
have
not
denied
categorically
that
the
affidavit
dated
27.10.2017 was not sworn by Santosh
Kumar in their reply. Paragraph 8 of the
reply to the affidavit reads as under:-

"8. That the appellant no.1 is not
aware about the affidavit dated 27.10.2017
but it appears as sweared somewhere else
and the respondents is not giving the
correct facts."

28. The defendants/respondents have
enclosed the order sheet of Original Suit
No.189
of
2012
instituted
by
plaintiff/appellant no.1 Santosh Kumar, and
the orders dated 25.10.2017, 15.11.2017,
and 28.11.2017 reveals that Santosh Kumar
was present in the court. Thus, it is evident
from the record that a false story has been
set up by the plaintiffs/appellants in the
application under Order 41 Rule 17 of
C.P.C. for setting aside the order dated
24.11.2017.

29. This Court is conscious of the fact
that it is settled in law that the words "was
prevented by any sufficient cause from
appearing" in Order 41 Rule 17 of C.P.C.
must be liberally construed to enable the
court to do complete justice between the
parties. This Court is also aware of its
prime duty to do substantial justice and the
technicalities should not come in the way
of the court in disseminating substantial
justice. If in a given case, 'sufficient cause'
is made out for the non-appearance of
plaintiffs/appellants, the court should take a
liberal view and recall the order dismissing
the appeal in default. In doing so, the courts
have wide discretion in determining the
'sufficient cause' keeping in view the
peculiar facts and circumstances.

30. It is also the well-established
principle of law that in a case where a party
approaches the court immediately and
within the statutory time specified for filing
the application, the discretion is normally
exercised in his favour provided the
absence was not mala fide or intentional as
the absence of a party in case otherwise
shall be compensated by heavy cost and a
lis be decided on merit.

31. This Court is conscious of the law
on the interpretation of the word "was
prevented by any sufficient cause from
appearing" but it is also settled in law that
where a party does not approach the court
with the clean hand and with true facts and
files an application before the court to get
the order of dismissal in the default set
aside on a ground which was not made out
from the record, and the ground has been
18 INDIAN LAW REPORTS ALLAHABAD SERIES
set up with an intention to befool or
defraud the court to get the order of
dismissal of the appeal in the default set
aside, the court should not come in aid to
such a party to allow him to reap the fruits
of false and frivolous explanation to get the
order of dismissal of the appeal in default
set aside. The present case is one such case
since
in
the
said
case,
the
plaintiffs/appellants had approached the
court under Order 41 Rule 17 of C.P.C. on
the ground which is false on the face of the
record.

32. In such view of the fact, this Court
does not find any illegality in the order
passed by the court below in rejecting the
application
of
the
plaintiffs/appellants
under Order 41 Rule 17 of C.P.C.

33. So far as the judgement of this
Court in Atar Singh (supra) relied upon by
the
learned
counsel
for
the
plaintiffs/appellants is concerned, the said
judgement is not applicable in the facts of
the
present
case
inasmuch
as
the
plaintiffs/appellants had not approached the
court with clean hand in filing the
application under Order 41 Rule 17 of
C.P.C.

34. For the reasons given above, the
appeal lacks merit and is hereby dismissed
with no order as to costs.
----------
(2023) 3 ILRA 18
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 1001 of 1993
U.P.S.R.T.C. & Anr. ...Applicants
Versus
Smt. Bhagwati & Ors. ...Respondents

Counsel for the Applicants:
Sri Sunil Kumar

Counsel for the Respondents:

(A) Civil Law - Motor Vehicles Act, 1988 -
Section - 173, - Civil Procedure Code, 1908
- Order 41 Rule 17: - Appeals - challenging
the Award - Accident - Corporation assailed the
award on ground i.e. contributory negligence -
quantum of compensation - appreciation of
evidence - deceased died due to sustained
injuries in accident - accident caused by the
rash and negligent driving of the driver of a bus
of UPSRTC when bus hit the scooter of
deceased - res ipsa loquitur - court finds that,
bus driver was driving bigger vehicle, he should
have been more vigilant - scooterist was riding
the scooter on its correct side - evidence
adduced by the appellant did not show that the
driver of bus was driving the vehicle causational
- as such finding of tribunal on the issue of
contributory negligence are upheld.
(Para - 9, 13)

(B) Civil Law- Motor Vehicles Act, 1988 -
Section - 173 - Civil Procedure Code,1908
- Order 41 Rule 17 - Appeals - challenging the
Award - Accident - Corporation assailed the
award on the ground the parents (legal
representative) of the deceased do not come
within the definition of family - maintainability of
claim petition - since, the claim petition was
filed in year 1990 and accident was took placed
on 30.10.1989 namely after the new Act, 1989
was came into force - the issue of legal heirs are
no longer res intergra in view of decision of
Hon'ble Apex court in case of Smt. Manjuri Bera
VS Orinetal Insurance Company Ltd. - the plea
that,
claimants
are
not
entitled
for
compensation, cannot be accepted as they are
legal representatives of the deceased - claim
petition maintainable.
(Para - 14, 15)

(C) ) Civil Law - Motor Vehicles Act, 1988
- Section - 173, - Civil Procedure Code,
1908 - Order 41 Rule 17: - Appeals -