- (1.) IN view of the office report dated 15.9.2011 and 8.2.2012 notice issued by registered post AD to the respondents no. 1, 2 and 3 is deemed sufficient.
(2.) THIS First Appeal From Order has been filed against the judgement and order dated 5.2.2009 passed in Misc. Case No. 07 of 2005 (Shankar Vs Shukalu and Others) by the First Additional District Judge, Court no. 1, Ghazipur arising out of Civil Appeal No. 170 fo 1994 (Shankar Vs Shukalu and Others) wherein the restoration application filed under Order 41 Rule 19 CPC was dismissed.
(3.) LEARNED counsel for the appellant has referred to the order dated 3.1.2005 whereby the appeal was dismissed for default and also the impugned order dated 5.2.2009 whereby his restoration application has been rejected. According to learned counsel the plaintiff appellant had made the restoration application giving reason for non appearance of his counsel when the matter was called out on 3.1.2005 and as such there was no fault on behalf of the appellant due to non appearance of his counsel before the appellate court. He states that the reason given in the impugned order dated 5.2.2009 for rejecting the restoration application is that there is no evidence filed by the plaintiff appellant with respect to engagement of his counsel in another court and that there is no evidence filed by the plaintiff appellant with respect to the illness of his wife whom he had taken to the hospital for treatment. According to learned counsel the absence of the counsel for the plaintiff appellant was bonafide because the counsel was engaged in another court and therefore the restoration application ought not to have been rejected for that reason since it was not the fault of the appellant. He further submits that the plaintiff appellant had taken his wife to the hospital for treatment and that reason has been disbelieved by the court below on the ground that there was another hospital nearer to his house where he should have taken his wife for treatment. Learned counsel submits that it is also not a valid reason for rejecting the restoration application of the plaintiff appellant.;