S.R. Bhargava, J. - (1.) This is respondents' application for recalling ex parte judgment and order dated 7th September, 1988, allowing F.A.F.O. No. 513 of 1988 Mor Mukut Sharma & anr. v. Harish Chandra & ors. and restoring Civil Appeal No. 513 of 1984 between parties. Prayer in the application is only for recalling the order dated 7th September, 1988. This Court has, however, preferred to describe the application in more appropriate way. This application was filed on 6th December, 1988 and there is neither any application nor prayer for condonation of delay.
(2.) Facts giving rise to this appeal are that Civil Appeal No 53 of 1984 filed by Mor Mukut Sharma and another against the applicants was dismissed in default by Civil Judge, Mathura on 29lh October, 1986. Mor Mukut Sharma and another preferred application under Order 41, Rule 19 of Civil Procedure Code for a re-admission of appeal. On 7th April, 1988 Civil Judge, Mathura dismissed their application. They filed F.A.F.O. No. 513 of 1988 against the order of the Civil Judge refusing re-admission of appeal. On 7th July, 1988. Appeal was ordered to be listed on 6th September, 1988. Notices were directed to be sent to the respondents by Registered Post. Personal service was also directed. It was further mentioned that personal service upon the respondents shall also be made. Appellant was required to file affidavit of service by 29th August, 1988. Appeal was directed to be listed for admission on 6th September, 1988. Notice was to contain direction that if possible the appeal shall be listed for disposal also. It is now not disputed that respondents were served with the notices. Appeal was not listed on 6th September, 1988 but was listed on 7th September, 1988. It was mentioned for admission under Order 41, Rule 11. In the list number of the appeal was given. Before that here was Appeal No. 455 of 1988 against which, F.A.F.O. was mentioned. In particulars of parties only the name of M.M. Sharma was given. Since notices by Registered A.D. Post had been sent and had not returned undelivered, service was presumed sufficient. In affidavit of service appellant asserted refusal of notice. On 7th September, 1988 none was present for respondents-applicants. Appeal was heard and allowed on merits.
(3.) On 6th December, 1988 respondents-applicants moved the present application. They contended that pairokar Shyam Singh came to Allahabad on 4th September, 1988 along with a local lawyer of Mathura and engaged Shri K.N. Tripathi on payment of fee. Vakalatnama was handed over to Shri K.N. Tripathi. Counter affidavit of Shyam Singh was drafted and papers were handed over along with he vakalatnama to the counsel who asked Shyam Singh to go back to Mathura on 6th September, 1988. The counsel instructed his clerk to watch the case and file vakalatnama and counter affidavit. Respondents-applicants further contended that list of 7th September, 1988 did not contain full particulars of the appeal and so the clerk of the counsel could not locate the appeal. It might have been a mistake. But there was sufficient cause for the absence of the respondents. It was further alleged in the affidavit filed on behalf of respondent-applicants that in view of Explanation added in Order 41, Rule 17 of Civil Procedure Code the appeal could not be heard on merits. Then he contention of the respondents-applicants was the Shyam Singh came to Allahabad on 5th November, 1988 to enquire the progress of the case and when he contacted his counsel Shri K.N. Tripathi, he was unable to tell the progress. Only the enquiries made in the office revealed that appeal was allowed ex parte on 7th September, 1988.;