D.S. Sinha, J. - (1.) In Appeal No. 320 of 1982, pending before the Special Judge (E.C. Act) Agra, 3rd August, 1984 was fixed for arguments. The counsel for the appellant was not available as he had gone outside Agra. The appellant, therefore, moved an application seeking adjournment and fixation of some other date for arguments. The respondent had no objection to the adjournment and as such his counsel had made an endorsement on the said application as 'No Objection'. When the case was called out no body responded. On account of failure to respond to the call the application seeking adjournment was rejected and the case was directed to be put up after lunch. After lunch the case was called out at 4 p.m., and, as no body was present at that time too, the appeal was dismissed in default. Thereafter, the appellant moved an application dated 13th August, 1984 praying the Court to revoke its order dated 3rd August, 1984 dismissing the appeal for default and to restore the appeal to its original number. This application came up before the Special Judge (E.C. Act), Agra, and he rejected the said application by means of his order dated 1st July, 1988. It is this order which is under challenge in the instant appeal.
(2.) I have heard Miss. Bharti Sapru, learned Counsel for the appellant and Sri. R. K. Avasthi, holding brief of Sri. A.S. Dewaker, who has put in appearance for the contesting respondent No. 2. The learned Counsel for the parties jointly pray" and agree that this appeal may be disposed of finally at this stage. I proceed to do so accordingly.
(3.) From a perusal of the impugned order it transpires that the application of the appellant for adjournment of the hearing of the appeal was dismissed for the failure on the part of the appellant to respond to the call. It appears that the appellant after moving the application bearing 'No Objection' from the counsel for the respondent felt assured that the hearing of the appeal would be adjourned in the normal course and there would be no impediment in that regard. If that be so it was quite normal for the appellant to be absent at the time when the case was called. In these circumstances it does not appear that the Court was justified in rejecting the adjournment application on behalf of the appellant. The Court also was not justified in declining to set aside the order of dismissal of the appeal dated 3rd August, 1984 merely on the ground that there was nothing in the restoration application to justify the absence of the appellant at 4 p.m. when the appeal was called out after the rejection of the adjournment application. The appellant might have, rightly, felt assured that the hearing of the appeal would be postponed specially in view of 'No Objection', from the side of the respondent and on entertaining such a feeling he might have left the Court. Such a feeling on the part of the appellant cannot be said to be unusual.;