S.P.PANDEY, J. - (1.) THIS is a first appeal from order under Section 331(3) of the UPZA and LR Act (hereinafter referred to as the Act), preferred against the order dated 11-3-1997 passed by the learned Additional Commissioner, Jhansi Division, Jhansi in appeal No. 33/30/19 of 1992-93/Jalaun, rejecting the application of the applicant under Order XLI, Rule 21 CPC for setting aside the ex parte judgment in the aforesaid first appeal thereby allowing the same ex parte.
(2.) BRIEFLY stated the facts giving rise to the present First Appeal From Order are that the plaintiff, Sri Krishna brought a suit under Section 229-B of the Act before the trial Court against the defendants Ran Singh and others which was dismissed on 6-3-1992. Aggrieved by this judgment and decree an appeal was preferred. The learned Additional Commissioner after hearing the learned Counsel for the appellant only allowed the first appeal on 24-1-1995 and set aside the judgment and decree dated 6-3-1992 passed by the learned trial Court. Thereafter on 16-2-1995, Gajraj Singh one of the respondents moved an application under Order XLI, Rule 21 CPC along with an affidavit for setting aside the ex parte order dated 24-1-1995 passed by the learned lower appellate Court, restoring the appeal to its original number and deciding it afresh after affording an opportunity of being heard to the parties concerned. The learned Additional Commissioner after hearing both the parties, came to the conclusion that no plausible and satisfactory explanation for the absence of the applicant has been furnished and rejected this application being without force on 11-3-1997. It is against this order that the instant First Appeal from order has been preferred. I have heard the learned Counsel for the parties and have also perused the record on file. For the appellant it was contended that the learned lower appellate Court has erred in rejecting the application for restoration of the case, as the same was filed alongwith an affidavit which remained uncontroverted; that sufficient and satisfactory explanation for the absence of the respondents has been furnished in the application/affidavit but the learned Court below has illegally did not believe it resulting in denial of substantial natural justice to the respondents; that the equity and justice demands that the parties should be afforded an opportunity of being heard before the final disposal of the case and the learned Additional Commissioner has grossly erred in law in not following this established principle of law and as such the restoration application of the applicant should be allowed and the case be restored to its original number, giving an opportunity of being heard to the parties concerned. In support, reliance has been placed on the case laws reported in 1972 RD 55 and AIR 1962 Alld. 407. In reply the learned Counsel for the respondent urged that the learned Court below has correctly passed the impugned order in view of the facts and circumstances of the instant case, as the date of hearing was very well known to the applicant; that the appeal in question was decided on merits and only one respondent out of 14 moved the application which was not maintainable; that the appellant has only challenged the order dated 11-3-1997 rejecting the restoration application and not the judgment and decree dated 24-1-1995 passed by the learned Court below and as such no interference is called for with the impugned order passed by the learned Additional Commissioner and this FAFO deserves to be dismissed outright.
(3.) I have carefully and closely examined the submissions made before me by the learned Counsel for the parties and the relevant records on file. A bare perusal of the record clearly reveals that the learned Additional Commissioner decided the first appeal on 24-1-1995 in the absence of the respondents since none appeared on their behalf before the Court. The respondent Gajraj Singh moved an application on 16-2-1995 along with an affidavit under Order XLI, Rule 21 CPC for setting aside the ex parte order dated 24-1-1995, restoring the appeal to its original number and disposal of the case on merits after hearing both the parties. It has been averred in this application that the applicant could not appear before the Court on the date of hearing i.e. 4-1-1995 due to LAGUN of his daughter. This fact was also communicated by him to his Counsel well before 8 days of the aforesaid date. The learned Additional Commissioner after hearing both the parties, came to the conclusion that since the respondent was very well in the know of the date of hearing, he remained absent due to his negligence in Pairvi and as such rejected the aforesaid application on 11-3-1997. The learned Additional Commissioner was not justified in not believing the averment made in the application for restoration by the respondent, Gajraj Singh as the affidavit filed in support remained uncontroverted. Had there been any negligence, it was on the part of his Counsel who was out of station and could not inform the Court concerned well before time. It is a settled principle of law that the applicant should not be penalised for inaction, mis-demeanour or negligence of his Counsel or agent. To my mind to achieve the ends of substantive natural justice and to facilitate its course, it would be quite just and proper if the appeal is restored to its original number and the case is decided afresh on merits after giving both the parties an opportunity of being heard and no party would feel prejudiced and as such this FAFO deserves to be allowed.;