K. N. Misra, J. - (1.) THIS writ petition is directed against the judgment dated 5-8-1985 passed by the District Judge, Lucknow dismissing application for restoration filed by the petitioner wherein a prayer was made for recalling order dated 21-3-1984 by which the appeal filed by the petitioner was dismissed in default with costs to the respondents.
(2.) BRIEFLY stated, the facts of the case are that the petitioner had filed appeal under Section 33 of the Urban Land (Ceiling and Regulation) Act, 1976 (for short the Act) directed against the order dated 6-6-1977 passed by the Competent Authority (Ceiling), Bareilly declaring 450.5 Sq. metres land as surplus vacant land under the Act. This appeal was filed in the Court of District Judge, Lucknow within limitation and registered as Civil Appeal No. 331 of 1978. The appellant, who is resident of Bareilly city, had engaged two local lawyers of Lucknow Sri K. K. Bajoria and Sri S. K. Chaurasia, Advocates, for conducting his appeal and the learned Advocates were paid their full fees which was settled for conducting the appeal on behalf of the appellant. It appears that after admission and registration of the appeal no date of hearing was given and the appeal was kept without date although sub-section (2) of Section 33 of the Act enjoins on the appellate authority to decide the appeal as expeditiously as possible. It appears that after lapse of about six years, a notice was issued to the learned counsel for the appellant fixing 21st March, 1984 for hearing in the appeal. This notice is said to have been served on the learned counsel for the appellant, but since they did not put in appearance on the date fixed, the learned District Judge, vide order dated 21-3-1984 dismissed the appeal in default with costs to the respondent. The order is quoted below : " On this date fixed for disposal of this old appeal, the appellant as also his counsel remained absent till 16.17 hours. I have waited enough. There is no other alternative but to order dismissal of the appeal in default. Mr. K. K. Srivastava is present for the respondent. ORDER-The appeal is dismissed in default with costs to the respondents. Sd/- P. Narain District Judge, Lucknow. 21-3-1984 " It is not disputed that in this appeal which was filed in the year 1978, no date of hearing was fixed earlier and this appeal was fixed for the first time for hearing on 21-3-1984 and that on that date it met its fate having been dismissed in default. No notice regarding date of hearing in the appeal was issued to the appellant, who was resident of Bareilly city and notice was issued to the learned counsel for the appellant, but since they did not put in appearance inspite of service of notice on them, the learned District Judge dismissed the appeal in default. Although service of notice on the learned counsel for the appellant would be deemed to be sufficient service of notice of hearing of the appeal on the appellant in view of the provisions contained in Order 3 Rule, 5, Code of Civil Procedure, but since after a lapse of about six years this appeal was listed for the first time for hearing on 21st March, 1984, and, as such, it was urged on behalf of the petitioner that the learned District Judge should have got a notice issued to the appellant as well especially when his counsel had not put in appearance on the said date of hearing fixed after a long period of about six years.
(3.) LEARNED standing counsel in reply urged that in view of the aforesaid provisions the service of notice on the appellant's counsel was quite enough and the learned District Judge committed no error in dismissing the appeal in default. LEARNED counsel further urged that the District Judge had committed no error in dismissing the restoration application by order dated 5-8-1985 as notice fixing 21-3-1984 for hearing in the appeal was served on the learned counsel for the appellant and it was not at all essential to issue notice to the appellant. There was nothing on record to show as to whether any of these two lawyers were approached by the applicant during the period of six months after dismissal of the appeal to know from them as to why there was no appearance put in the appeal when notice was served on them. LEARNED standing counsel, thus, urged that no error has been committed by learned District Judge in passing the impugned order rejecting the restoration application. Further in reply to the argument of the learned counsel for the petitioner that the petitioner should not be made to suffer on account of any laches or inaction on the part of his lawyers and the appeal deserves to be restored and decided on merits, learned Standing Counsel urged that since there was nothing on record to indicate as to why the learned counsel for the appellant had not put in appearance inspite of service of notice, and, as such, in the absence of sufficient cause shown for their non-appearance, the learned District Judge committed no error in rejecting the restoration application. I have carefully considered the arguments of the learned counsel for the parties and having perused the impugned orders passed by the District Judge, I find that the impugned orders passed by the District Judge cannot be sustained.;