Manoj Kumar Gupta, J. - (1.) The plaintiff-respondent filed an application under Order 39, Rule 2A CPC for alleged violation of injunction order dated 20.11.1999. It was registered as Misc Case No. 2 of 2000. On 29.3.2011, it was dismissed for want of prosecution. The plaintiff-respondent thereafter filed an application for restoration of Misc Case No. 2 of 2000. It was registered as Misc Case No. 15 of 2011. Therein, the explanation of the plaintiff-respondent for non appearance on 29.3.2011 was that he was ill and therefore could not come to the court. The trial court by order dated 31.10.2014 rejected the restoration application by recorded a finding to the effect that from the order sheet of Original Suit No. 276 of 1999, it transpires that the plaintiff-respondent was present in the said suit on 29.3.2011. The trial court held that as the plaintiff-respondent was present in the suit and therefore, his explanation that he was ill and thus could not appear in Misc Case No. 2 of 2000 can not be accepted. Aggrieved by the said order, the plaintiff-respondent preferred Civil Misc. Appeal No. 63 of 2014, which has been allowed by the impugned judgment and order dated 9.7.2015. The restoration application has been allowed on payment of a cost of Rs. 5000/- and Misc Case No. 2 of 2000 has been restored to its original number.
(2.) Learned counsel for the petitioners vehemently contended that the appellate court had erred in allowing the appeal in the teeth of the specific finding recorded by the trial court that the plaintiff-respondent remained present in the suit on 29.3.2011 and thus, the explanation furnished by him, for his non-appearance in Misc Case No. 2 of 2000, is false.
(3.) The appellate court in its impugned order has observed that it had called for the records of the original suit and perused the order dated 29.3.2011. It transpires therefrom that on 29.3.2011, the plaintiff-respondent was not personally present, but on the request of his counsel, the matter was adjourned fixing 15.4.2011. The appellate court has thus concluded that the finding recorded by the trial court that the plaintiff-respondent was present on 29.3.2011 in Original Suit No. 276 of 1999 is not correct. Accordingly, the appellate court found the explanation given by the plaintiff-respondent for his non appearance on 29.3.2011 in Misc Case No. 2 of 2000 to be sufficient. The application for restoration has been allowed on payment of a cost of Rs. 5,000/-.;