- (1.) The petitioner has filed this revision petition against the order of the Senior Subordinate Judge, Gurgaon (with enhanced appellate powers), dated 1st May, 1979, whereby his application for restoration of the appeal has been dismissed.
(2.) The petitioner, Smt. Pari Bai, moved an application for readmission of her appeal, which was dismissed for her non-appearance and her counsel on 5th November, 1977. It is alleged that her counsel was present on 5th November, 1977 and the appeal was fixed for the service of the respondent but the Ahlmad had not issued notice of the appeal for the said date and, therefore, it was adjourned to 17th December, 1977, but as the appeal was not found listed in the cause list for 17th December, 1977, on enquiry made it was revealed that the appeal was dismissed for non-appearance on 5th November, 1977. Consequently, an application for restoration and readmission of the appeal was filed on that very day, i.e. 17th December, 1977. This application was contested on behalf of the respondent and on the pleadings of the parties the trial Court framed the following issues :- (1) Whether there is any sufficient cause for restoration of appeal ? (2) Whether the application is within time ? After going through the evidence, the learned Senior Subordinate Judge has dismissed the said application for restoration. It has been observed by the learned Senior Subordinate Judge, that, "the counsel for the appellant choose not to appear on that date and thought it fit to get the appeal dismissed for non-appearance and later on moved this application for readmission of the appeal." It has also been further observed that "The applicant did not take any step to examine either Presiding Officer or to have the record of that date produced. In these circumstances, I am of the view that there is no sufficient cause for restoration of the appeal and decide the issue against the applicant and in favour of the respondent."
(3.) After hearing the learned counsel for the parties, I am of the view that the learned Senior Subordinate Judge has taken unnecessary pains in dismissing the application. His whole approach on the question of restoration of appeal dismissed at the very initial stage, seems to be wholly wrong and illegal. Order 41 Rule 19 of the Code of Civil Procedure, provides, that :- "Where an appeal is dismissed under Rule 11, sub-rule (2), or Rule 17 or Rule 18, the appellant may apply to the Appellate Court for the readmission of the appeal; and where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit." From the said provisions, it is clear that if the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing or from depositing the sum so required, the Court shall readmit the appeal on such terms as to costs or otherwise it thinks fit. In the circumstances of the case it was a fit case where the appeal should have been restored, because even the respondent was not served for 5th November, 1977, when the appeal was dismissed in default. In any case, there was no rebuttal to the evidence of the petitioner and under the circumstances, the story put up by him was not such which could be said to be false or a concocted one. In cases when the Court finds that the dismissal was not got with an ulterior purpose, the same may not be restored and readmitted, but in the absence of any mala fide intention, ordinarily such cases should be readmitted and decide on merits. No such suggestion has been put by the opposite side to the petitioner in the present case. Under the circumstances, this petition is allowed, the order of the learned Senior Subordinate Judge is set aside subject to payment of Rs. 200/- as costs. It is directed that the appeal be readmitted and decided on merits in accordance with law. The parties through their counsel have been directed to appear in the Court of District Judge, Gurgaon, on 19th March, 1980. Petition accepted.;