KRISHNA MURARI, J. - (1.) HEARD Sri P.V. Singh, learned Counsel for the petitioner and Rajiv Joshi for contesting re­spondent No. 6.
(2.) PLEADINGS have been exchanged between the parties and with the consent of the learned Ccunsel for the parties, the writ petition is being disposed of at the admission stage under the Rules of Court. Suit under section 229-B of the U.P.Z.A. and L.R. Act (for short 'the Act') was dismissed by the Trial Court vide judgement and decree dated 16.1.2008 against which petitioner went up in appeal. On 3.6.2003 the appeal was dismissed on merits ex-parte without hearing the peti­tioner-appellant. An application dated 12.6.2003 was filed to recall the ex-parte judgment on the ground that due to inad­vertent mistake instead of 2.6.2003 the Counsel informed him 12.6.2003 as the date fixed on account of which he could not ap­pear and the case was decided ex-parte. Unfortunately, the recall application also came to be dismissed in default on 21.4.2006. Another application to recall the said order was moved on 4.4.2007 which was duly supported by an application un­der section 5 of the Limitation Act explain­ing the delay. The Appellate Court vide order dated 29.10.2007 disbelieved the rea­son given for non-appearance on 2.6.2003 as well as the explanation submitted for delay in moving the application dated 4.4.2007 and dismissed both the applica­tions. The Appellate Court has further held that order dated 3.6.2003 is not liable to recalled unless it is shown that the peti­tioner-appellant has suffered some loss and the order has resulted into failure of justice. Revision filed by the petitioner was also dismissed by the Board of Revenue by a cursory order summarily. Aggrieved, the petitioner has approached this Court.
(3.) IT has been urged by learned Counsel for the petitioner that petitioner could not appear on 2.6.2003 on account of the fact that due to inadvertent mistake the Counsel informed him the date to be 12.6.2003 and on the same day the recall application was moved. It has further been submitted that reason given in the section 5 application along with application dated 4.4.2007 was that the Counsel had assured him that he will do necessary pairvi and as soon as the recall application is restored he shall duly inform but the said information was not given and in such circumstances, the delay was liable to be condoned and the ex-parte judgement dated 3.6.2003 was li­able to be recalled but the Courts below have committed manifest error in dismiss­ing the two applications. Attention of the Court has also been drawn of the provision to Order XLI, Rule 17 of the Code of Civil Procedure which provides that the appeal is liable to be dismissed for non appearance of the appellant and the explanation which provides that nothing in sub-rule (1) shall be construed as empowering the Court to dismiss the appeal on merits.;