Shiv Charan - (1.) INSTANT application has been moved under Order XLI, Rule 19, C.P.C. for restoration of Second Appeal No. 1238 of 2002 which was dismissed on 29th February, 2008 with the observation that no substantial question of law was involved and the second appeal was admitted. Hence, the order of admission was recalled and set aside.
(2.) IT has been alleged in the affidavit annexed with the restoration application that on the date when the impugned order regarding allowing recall application and setting aside the earlier order was passed, a substitution application was pending. During the pendency of the appeal, respondent No. 1 had died and in order to bring his heirs on record, an application for substitution was moved. In these circumstances, earlier to passing any order on recall of earlier order, it was incumbent on the Court to dispose of the substitution application of respondent No. 1 but without bringing the heirs of respondent No. 1 on record, the appeal was dismissed by the impugned order on the ground that no substantial question of law is involved and this is against the spirit of law. IT has further been alleged that in view of Order XLI, Rule 17 of the C.P.C. in case the appellant is absent then no order may be passed on merits rather the appeal must be dismissed in default. Whereas by the impugned order the appeal was decided on merits instead of dismissing the appeal in default as is provided in Order XLI Rule 17 of the C.P.C. Further urged that a finding has been recorded by this Court on 22nd February, 2008 that counsel for the appellant was not present and this finding/observation is not correct. On 20th February, 2008, the counsel for the appellant was very well present in Court and requested for two weeks' time for filing objection against the application for recall as well as counter -affidavit and rejoinder -affidavit. And on that date, Sri Manu Saxena, advocate appeared in Court and requested the Court that the case may be taken up in the revised list as Sri Ajeet Kumar, advocate is on legs in Court No. 39 and as afterwards list could not be revised. Hence, another mention was made on behalf of Sri Ajeet Kumar at the time of rising of the Court that matter may be ordered to be put up as unlisted. But the Court ordered that the case may be listed on 29th February, 2008. Certain other points has also been raised regarding perversity of the judgment of first appellate court. There appears no necessity to mention the merits of the case as has been stated in the affidavit because application has been filed for restoration of the appeal and not for review of the order. On behalf of opposite party/ respondent objection has been filed against the application for restoration. And in objection merit of the case has also been discussed as has been alleged by the applicant also. But regarding para 19 which deals with matter of the ground for restoration detailed reply has been submitted. It has been alleged that the heirs of Sri Budh Prakash had already appeared and hence the reference of substitution application was meaningless. That mention of Order XLI, Rule 17, C.P.C. is also misconceived. The application moved on behalf of respondents was to be disposed of on merits and the Court after applying its mind disposed of the application for recall of the order. It has also been alleged that on that date no application for the appellant was pending and the appeal was also not listed for final hearing so as to pass the order dismissing the appeal in the default but the application of the respondent was pending for hearing and disposal and accordingly the application of the respondent was to be disposed of on merits and this application could not have been dismissed in default as the applicant was very well present at the time of hearing. Certain other ground made in the application has also been disputed which has been made by the applicant regarding merits of the case as well as merit of the judgment of the first appellate court. And that the prayer made in the application is liable to be dismissed. I have heard Sri H.M.B. Sinha, advocate for the appellant and Sri Manu Saxena, advocate holding brief of Sri Ajeet Kumar, for the respondents at length and perused all the facts and circumstances of the case.
(3.) AT the very outset, learned counsel for the applicant argued that on the date when the appeal was dismissed for want of substantial question of law after recalling of the order dated 30th January, 2004, one substitution application was pending. That respondent No. 1 had died during the pendency of the appeal and in order to bring his heirs on record application was moved for substitution. This fact has not been disputed by the learned counsel for the respondents. But learned counsel for the respondents argued that heirs of Sri Budh Prakash deceased respondent No. 1 appeared in the appeal and filed the application for recall of the order dated 30th January, 2004. That application was moved by the heirs and inspite of the fact that the substitution application was pending, the second appeal was dismissed on the ground that no substantial question of law is involved and at the time of admission on 13th April, 2004 appeal was wrongly admitted on certain substantial question of law. Under these circumstances as the application has been moved by the heirs of respondent No. 1 deceased, then this fact is meaningless that on the date when the second appeal was dismissed substitution application for substituting the heirs of respondent No.1 was pending. I am of the opinion that this fact might have been most material in the circumstances if adverse order might have been passed against the interest of the heirs but no order was passed against the interest of the heirs of respondent No. 1 rather the application moved by the heirs of deceased respondent No. 1 was allowed. Hence, I do not think that this restoration application is maintainable on the ground that substitution application of the heirs of respondent No.1 was pending on the date when the order dated 29.2.2008 was passed. Much has been argued by the learned counsel for the applicant in the light of the provisions of Order XLI, Rule 17, C.P.C. it has been provided by Order XLI, Rule 17, C.P.C. "Dismissal of appeal for appellant's default. - (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed. (2) Hearing appeal ex parte. -Where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte." In view of above provisions of law in case on any specific date appellant is absent and the respondent is present on the date of hearing then the appeal may not be decided on merits rather the order shall be passed regarding dismissal of the appeal in default. In the present case sub -rule (2) of Rule 17, Order XLI is also material. It has been provided in this sub -rule that where the appellant appears and the respondent does not appear, the appeal shall be heard ex parte. I have perused the order sheet of the appeal and from a perusal of the same it is evident that on 13th February, 2008 an application was moved on behalf of respondent for recalling of the order dated 30th January, 2004 passed regarding the admitting of appeal and granting stay order and it was alleged on behalf of the respondents that the second appeal was admitted for hearing on the substantial question of law as framed at point C and D of the memo of appeal. But in view of law, these are not the substantial question of law. Four days time was allowed to the appellant to file objection against this application for recall of the order and the appeal was ordered to be listed on 20th February, 2008 for hearing. Under these circumstances, it means that on 13th February, 2008 arguments were to be heard on the application moved on behalf of respondents for recall of the order and not the hearing of the appeal on merits. In view of the judgment of the Apex Court if an appeal has been admitted on certain substantial question of law, thereafter respondent appeared and moved an application for recall of the order on the ground that the questions on which the appeal had already been admitted are not actually the substantial question of law. Then the Court is perfectly justified in recalling the order if arrived at the conclusion that no substantial question of law is involved on which the appeal has been admitted. Hence, the application of the respondent for recalling the order of admission was perfectly maintainable and under these circumstances, the arguments were to be heard on application moved on behalf of respondent instead of hearing the learned counsel for the parties on merits of the appeal. The application for recall is to be disposed of and due to this reason, on 20.2.2008 an order was passed that the case be put up on 27th February, 2008 as peremptorily and on 27th February, 2008 order was passed to the following effect : "At the time of calling in first round learned counsel for the respondents is present. But none is present for the appellant. Respondents' counsel stated that at the time of calling in second round after lunch he will be busy in Court No. 39 in a part heard matter. And he will not be available after lunch and he also stated that the matter is urgent and that is why the case was listed peremptorily also in the first round of calling appellant's counsel failed to appear in Court. But in view of tradition no adverse order can be passed in first round. But the learned counsel for the respondents requested that it may be taken up as unlisted tomorrow or day after tomorrow. Hence, put up on 29th February, 2008 for orders as unlisted and learned counsel for respondents shall inform the learned counsel for the appellant in writing about this order." ;