VINOD K.SHARMA, J. - (1.) THE present appeal has been filed against the order passed by the Additional District Judge, Kurukshetra vide which the application moved by the appellant under Order 41 Rule 19 read with Section 151 CPC for readmission of the appeal has been rejected. Learned Additional District Judge vide order dated 6.10.1997 was pleased to dismiss the appeal for non-prosecution. The order passed reads as under :- "Counsel for the appellants today pleads no instructions to appear on behalf of the appellants. Case called again. Nobody else is coming on behalf of the appellants. So, the appeal is dismissed in default for non- prosecution. File be consigned to the record room."
(2.) THE appellant herein moved an application under Order 41 Rule 19 CPC for readmission of the appeal dismissed in default. It was pleaded by the appellant that due to ailment, he could not be present in the Court on 6.10.1997 and had instructed his counsel to appear in the Court. It was the case of the appellant that he was treated in Vimal Nursing Home at Ladwa and Mahavir Sewadal Nursing Home Ladwa, Government Hospital Ladwa and therefore remained on bed for sufficiently long period and therefore, could not contact his counsel. It was a case of the appellant that on slight recovery when he contacted his counsel, he came to know that the appeal was dismissed for non- prosecution on 6.10.1997 in spite of instructions having been given to his counsel to appear on his behalf. The said application was contested by the respondents on the plea that the application was barred by time and also that the appellant by his own conduct was stopped from filing the application for readmission of the appeal. The case set up by the respondents was that the counsel had pleaded no instructions and therefore it could not be said that he was busy in another Court and therefore, the allegation that the counsel could not appear being busy in another Court was totally false. It was also the case of the respondent that there was no reason to condone the delay. The learned Court below by holding that no medical record was produced regarding his admission in the hospital came to the conclusion that the stand taken by him was wrong. It was also observed by the learned Court below that the appellant had two other brothers who could have appeared in the Court and therefore no benefit of his absence can be granted to him. The learned Court below also observed that as the counsel for the appellant had pleaded no instructions, then it was the duty of the Court to issue notice to the parties and in absence thereof the application deserves to be allowed and appeal re-admitted. (a) Atar Singh and others v. Lotan Singh and others, AIR 1992 Allahabad 59. (b) Tahil Ram Issardas Sadarangani and others v. Ram Chand Issardas Sadarangani and another, 1993(2) RCR(Crl.) 617 (SC) : AIR 1993 Supreme Court 1182. (c) Malkiat Singh and another v. Joginder Singh and others, 1998(1) RCR(Civil) 277 : 1998(1) RCR(Civil) 277 : 1998(1) PLR 271. (d) Surinder Kumar v. Ram Nath, 2001(3) RCR(Civil) 315. (e) Harjinder Singh v. Kirpal Singh, 2000(2) RCR(Civil) 245 : 2000(2) Civil Court Cases 366 (P&H). (f) Rajasthan State Industrial Development and Investment Corporation Ltd., Jodhpur v. M/s. Modi Thread Mills, 2004(1) RCr(Civil) 335 : 2003(3) Civil Court Cases 268 (Rajasthan). The learned Court below distinguished all the said judgments and by holding that the story put up by the appellant being concocted could not be believed and accordingly dismissed the application. The learned Court below further came to the conclusion that the period of limitation was to run from the date of dismissal of the suit and not from the date of knowledge and therefore, the application filed by the appellant was hopelessly time barred and there was no reason to condone the delay in filing the application.
(3.) SHRI S.M. Sharma, learned counsel for the petitioner by relying upon the judgment of the Hon'ble Supreme Court in the case of Malkiat Singh and another v. Joginder Singh and others, 1998(1) PLR 271 to contend that when the counsel had pleaded no instructions and no notice was issued to the appellant who was not present in the Court then the Court ought to have readmitted the appeal and heard the same on merits. He also placed reliance upon the judgment of the Hon'ble Supreme Court reported in Tahil Ram Issardas Sadarangani and others v. Ram Chand Issardas Sadarangani and another, AIR 1993 Supreme Court 1182 to contend that when an Advocate withdraws from the Court and the petitioners are not present in the Court, then the interest of justice requires that a fresh notice for actual date of hearing should be sent to the parties. Thus, the contention of the counsel for the appellant was that once it was shown to the Court that on the date when counsel pleaded no instructions and the appellant was not present, it was the duty of the Court to have issued notice to the parties. The contention of the counsel for the appellant is that since this procedure was not followed, his application ought to have been allowed.;