SATISH KUMAR MITTAL, J. - (1.) THE present S.A.O. has been filed by the appellants against the order dated 11.5.2001 whereby the application filed by them under Order 41 Rule 19 CPC for readmission of their appeal was dismissed for default on 15.9.1993 as their counsel did not appear at the time of hearing of the appeal.
(2.) IN this case, the appellants filed a suit for declaration and possession against the respondents in the year 1982. The said suit was dismissed on 10.12.1987. Against the said judgment and decree, the appellants filed an appeal. On 15.9.1993, the said appeal was dismissed in default as counsel for the appellants did not appear at the time of hearing of the appeal. Immediately thereafter on 13.10.1993, the appellants filed an application under Order 41 Rule 19 CPC for readmission of the appeal and deciding the same on merits. In the application, which was supported by an affidavit, it was stated that the appellant could not present efore the Court on the date of hearing as he was ill and he failed to send a message to his counsel in this regard. A medical certificate was annexed in this regard. It was further stated that their counsel could not appeal in the Court due to his some engagements, as a result of which the appeal was dismissed in default for non-appearance of the applicants and their counsel. The aforesaid application was contested by the respondents. The learned first Appellate Court without deciding the said application, on the basis of the affidavits of the parties, had framed an issue on that application to the effect whether there were sufficient grounds for restoration of the appeal, dismissed in default on 15.9.1993 ? On the said issue, the evidence was led. In support of the application, one of the appellants appeared and also produced and proved the medical certificate. The respondents did not lead any evidence. Ultimately vide order dated 11.5.2001, the firs Appellate Court dismissed the application filed by the appellants while observing that if one of the appellant was ill, the other appllants could have appeared. It has been further observed that the appellants have tried to misuse and abuse the process of law by stretching the litigation due to their frequent non- appearance in the Court. Therefore, they have failed to prove their bona fide. Against the said order, the instant appeal has been filed.
(3.) I have heard the counsel for the parties. Counsel for the appellants submitted that the appellant engaged a counsel and if he did not appear on 15.9.1993, then the appellants should not be suffered because of non- appearance of their counsel. Secondly, it has been submitted that within one month, the application for readmission of the appeal was filed and the trial Court had taken a long time for deciding the said application. The learned counsel further submitted that as for as the applicant is concerned, he has proved on record the medical certificate regarding his illness, therefore, his non-appearance on the date of hearing was not intentional.;