J.V. Gupta, J. - (1.) THE Defendant -Appellant has filed this appeal against the order of the Senior Subordinate Judge, Hoshiarpur (Exercising enhanced appellate powers), dated 27th October, 1976, whereby his application for readmission of the appeal was dismissed.
(2.) AN appeal against the judgment and decree of the trial Court, dated 11th August, 1975, was filed by the Defendant -Appellant on 25th September, 1975, in the Court of Senior Subordinate Judge, Hoshiarpur. (Exercising enhanced appellate powers). The order of 12th November, 1975, reads as under: - Present: Counsel for the Appellant. Vishwa Nath, Respondent No. 2 served through Mukhtiar. Respondent No. 1 not served. Record of lower Court also not received. Case called several times. Again be summoned on Payment of process -fee and registered cover for 14th January, 1976. Process fee and registered cover be put in within three days. On 14th January, 1976, the appeal was dismissed with the following orders: - The Appellant has failed to deposit process fee and registered A.D. covers in accordance with the last order and as a result thereof notice to the Respondents could not be issued. The appeal is accordingly dismissed on the said score. The file be consigned. An application for readmission of the appeal was moved on 22nd January 1976, which was contested by the Plaintiff -Respondent. The lower(sic) appellate Court dismissed the same on the ground that there is no sufficient cause to set aside the order of dismissal dated 14th January, 1976. The learned Counsel for the Appellant has argued that though the Defendant -Appellant failed to pay the process -fee as directed vide order dated 12th November, 1975, but according to statement of the Plaintiff -Respondent himself, he was present on the dale of dismissal of the appeal, though his presence is not marked in the order of dismissal. The learned Counsel contended that though his client was negligent in not filing the process -fee, but in any case it was a fit case which should have been restored on payment of certain costs as it was the first date on which he was found negligent by the Court. After hearing the learned Counsel for the parties, I am of the opinion that taking into consideration the statement of the Plaintiff -Respondent and the totality of the circumstances, it was a fit case where the order dismissing the appeal should have been set aside and the appeal should have been readmitted. In such cases, while dealing with the applications to set aside order of dismissal for default, the Court has to consider the position of the party concerned rather than the conduct of the members of the bar, though it may sometimes be difficult to dissociate the one from the other. As regards the position of the party a litigant should not be deprived of hearing unless there has been some thing equivalent to misconduct or gross negligence on his part or some thing which cannot be set right by his being ordered to pay costs. Consequently, this appeal is accepted, the order of the lower appellate Court is set aside and the appeal is directed to be re -admitted on payment of Rs. 100/ -as costs. The parties through their counsel have been directed to appear before the District Judge, Hoshiarpur on 21st December, 1979. Records of the case be sent back immediately.;