S.R. Bhargava, J. - (1.) This appeal has arisen from an order dismissing an application under Order 41, Rule 19, C.P.C., for re-admitting appeal for hearing. The appeal has been finally heard at admission stage with the agreement of the parties under High Court Rules. Lower Court tire ford has been summoned and perused. Hence, appeal is being disposed of at this stage on merits.
(2.) As is evident from lower court record appellants filed civil Appeal No. 179 of 1984 against the respondents against judgment and decree dated 1st May, 1984 passed by Munsif City, Jaunpur, decreeing the suit for cancellation of will dated 22 January, 1971 executed by Mangroo in favour of Bhagwati Prasad, Shital Prasad and Meetal Prasad. There were number of adjournments at the instance of the appellant. On 9th September, 1987 the appeal was called out The note recorded by the lower appellate Court is "parties want to call their counsels". It then appears that the appeal was called out again. Respondent was present with his counsel. Appellant did not turn up despite repeated calls. Counsel for appellants appeared before the lower appellate Court and stated that his client did not contact him, hence he was unable to argue the appeal. Respondents moved application accompanied by an affidavit that the appellant had been present all along but was not appearing in the Court. In these circumstances the lower Court treated the appellant to be present in the Court and heard the appeal on merits. The lower appellate Court fixed 17 the September, 1987 for judgment. It is admitted between parties that on 17th September, 1987 staff of the Court proceeded on strike and Courts could re-open only on 9th October, 1987. Then the appeal was fixed for judgment on 13th October, 1987. On that date the learned lower appellate Court dismissed the appeal on merits by a discussed judgment.
(3.) On 21st October, 1987 appellants moved application under Order 41, Rule 19 C.P.C., for re-admitting the appeal for hearing. Ground urged in the application was that appellant No. 1, i.e., Bhagwati Prasad who used to conduct pairvi of the appeal fell ill and so could not attend the court on 9th September, 1987. Affidavit was filed in support of this application. In this affidavit only this much was said that appellant No. 1 could not attend the court on 9th September, 1987 on account of his illness. Nature of illness was not disclosed.;