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OBSERVANCE OF CIVIL TRIAL

Submitted by Group
S.No. Question Answer
1. Case Number
TITLE APPEAL NO.

2. Name of Appellants Mamta Kumari & Others

3. Name of Respondents

4. Nature of case Civil Appeal for setting aside the order of 2nd Munsiff ,
Madhubani
5. Substantive Law O. 41 of Code of Civil Procedural , 1908
Applicable Transfer of Property Act, 1882
Court Fees Act, 1870
Indian Stamp Act , 1859

6. Procedural Law Code of Civil Procedure, 1908

Applicable Indian Evidence Act , 1872
The Limitation Act, 1963
7. Before which forum Filed:- Court of District Judge ,Madhubani
filed/tried Tried:- Court of Additional District Judge VIII, Madhubani

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8. Different stages 17.07.1988 Registration of Appeal

transpired as per the
Order Sheet 28.12.1988 Appeal Admitted

28.12.1988 A) Issue of Summon by both

process
01.12.1991
B) Compliance

16.03.1993 Cross Objection Filed

27.01.2007 Arguments

03.12.2008 Appeal Dismissed because of

nonprosecution

03.01.2015 Petition filed for Restoration of Appeal

23.04.2016 Restoration of Appeal

23.04.2017 Arguments

23.08.2019 Appeal Dismissed

05.09.2019 Decree Prepare

9. Minutes of Pleading • Mamta Kumari filed the current appeal dated 17.07.1988
against the Judgement of learned 2nd Munsiff,
Madhubani dated 25.05.1988 and Decree dated
31.05.1988.
• The Respondents in the present appeal are:-
1(a). Dinesh Singh

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1(b). Ganesh Singh

1(d). Urmila Devi
1(e). Bina Devi

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1(f). Amerika Devi 1(g).

Meera Devi
3. Surendra Mahto
4. Lukhana Mahto
5. Kumari Marani
6. Jagdanand Singh
7. Sachhidanand Singh

• The Appeal is presented under Order XLI, and miscellaneous

case is presented under Order XLI Rule 17 of Code of Civil
Procedure, 1908.
• The witnesses in the present case from the Respondent sides
are :-
1. Yugal Kishore Singh
2. Ram Bilas Singh
3. Ram Chandra Nayak
4. Krishna Dev
5. Rameshwar Singh
6. Kaushal Kishore
7. Ramchandra Singh
8. Sukhdev Prasad Singh
9. Ramashesh Mudai
10. Formal Witness
11. Ramchandra Prasad

The present appeal, i.e., 37/1988, arises from the Title Suit no.
49 of 1978, which was decided in the favour of Plaintiff. Stating
the facts of the original suit in brief, Defendant 1, Waman Singh,
Thakai Singh and Ram Bilas Singh, entered into an Agreement

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for Sale of a land with Plaintiff on 15.02.1975. Under this

agreement Plaintiff was required to pay amount of Rs.2500 in
the same month and remaining Rs.1000, as total value of the
agreement was Rs.3500, before 31.12.1975. Plaintiff fulfilled
the first condition by paying Rs.2500 and was ready to pay the
remaining Rs.1000. However, Defendant 1 decided to sell the
land to Defendant 2, i.e., Jagdanand Singh and Sachidanand
Singh, in lieu of Rs.6000. In spite of being aware of the
Agreement for Sale between Defendant 1 and Plaintiff,
Defendant 2 decided voluntarily to enter into sale deed with the
Defendant 1 and the same was executed on 29.05.1978.
Becoming aware of this, Plaintiff decided to bring a suit in
Munsiff Court, which was ultimately decided in his favour and
decree was prepared. Against this, Defendant 2 has brought an
appeal, the present case, to the Court of District Judge,
Madhubani stating that Honorable Munsiff Court has erred in
deciding the case on various points such as overlooking
Defendant’s witness, accepting the alleged fraudulent
Mahadanama, etc.

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10. Analysis of Order

sheet, in terms of Title Appeal No. 37/1988
compliance of decision
made by the Order to remove defects: On 17.09.1988, when the Appellants
Court filed their appearance in the court; the court found in total two
defects in their petition and directed them to remove the defects.
Accordingly, on 28.12.1988, the defects were removed by the
appellant and the appeal was admitted.
Order to issue process: On 28.12.1988, the court directed for
the issue of process to all the Respondents. On 30.12.1989, the
summons returned un-served due to the incorrect address of the

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Respondents. Accordingly, the Appellant was directed to

provide correct address of the Respondents for fresh issue of
summons. On 20.06.1990, Appellant filed the correct address of
the Respondents. The court directed to send summons a fresh.
On 01.12.1991, Appellant submitted that since all Respondents
are residing together, the acceptance of the summons by
Respondent number 3 shall be construed as valid service of
summons. This prayer of appellant was allowed by the court.
Order to file Cross Objection: On 04.04.1992, the court
directed the Respondents to file their cross objection. On filing
time petition for cross objection thrice, the Respondents filed
their cross objection on 16.03.1993, which was accepted by the
court.
Order to file reply: On 03.09.2007, the Respondents filed an
Application under Order 39 Rule 1&2 of Code of Civil
Procedure, 1908. Accordingly, the court directed the Appellant
to file their reply. On 03.10.2007 and on 03.11.2007, the
Appellant failed to file their reply. The court, hence, gave a last
chance to file the reply. On 26.12.2007, the Appellant failed to
file the reply yet again and consequently a fine of Rs. 500 was
imposed on the Appellant for non-compliance of the order.
Appellant did not file the reply on 02.02.2008, and the court
directed to comply with order, failing which the appeal shall be
dismissed. Since then, the Appellants failed to appear before the
court on three occasions and consequently on 03.12.2008, the
appeal was dismissed due to non-prosecution.

Misc. Case No. 01 of 2015

Arising out of Title appeal No. 37 of 1988

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Order to file deficit court fee: On 03.02.2015, the court

directed the petitioner to file the deficit court fee. Accordingly,
the deficit court fee was filed on 03.03.2015.
Order to file reply: On 03.11.2015, the court allowed the
limitation petition by the Petitioner. Accordingly, the court
directed the Respondents to file their reply. On 03.01.2016, the
Respondent informed the court that they are not interested in
filing the reply because this case was filed for evidence of
Plaintiff’s Witness.
Order to pay cost to the other party: Due to inordinate delay
in the petition on behalf of the Petitioner, the court directed the
Petitioner to pay Rs 5000 as cost to the Respondents.
Final Decision and Decree: Based on the oral and documentary
evidences put up before the court and on hearing the arguments
from both the sides, a judgment was passed dismissing the
appeal on 23.08.2019. Subsequently, on 05.09.2019, the decree
was prepared.

11. Final Decision

The Appeal against the Order of 2nd Munsiff, Madhubani is
dismissed on the ground that the Appellant has failed to prove
any defects in the Order, on the basis of oral and other
documentary evidences.
From the order sheet, it transpires that on the basis of Evidence
admitted & Arguments forwarded, Appellants failed to prove
their contention and hence the appeal made on point of law was
dismissed.

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2.