- (1.) THIS is an application in revision against the order of the Additional Commissioner, Udaipur dated the 29th January, 1955 whereby he confirmed the order of the Collector dismissing the application for restoration of the appeal of the applicant for want of sufficient cause.
(2.) WE have heard the counsel appearing on behalf of the parties and have gone through the record of the case. It appears that the appeal was filed by the applicant before the Collector, Chittorgarh, on 20th Sept. , 1954. After obtaining the necessary report from the office, it was registered on the 21st Sept. 54 to be heard on the 2nd November, 1954. On this date the appellant did not appear and the appeal was dismissed in default. An application for restoration was filed by the appellant on the next day i. e. 3rd Nov. 54. He pleaded that he had no intimation of the date of hearing but this was also rejected by the collector. In appeal before the Additional Commissioner, the applicant met the same fate and his appeal was dismissed. Hence this revision to the Board. The main contention of the applicant is that on the 21st Sept. 54 when the court registered the appeal and fixed 2-11-54 as the next date of hearing, he was not present in the court and therefore he did not appear on the said date of hearing. A perusal of the order sheet shows that on 21st Sept. 54, the applicant was not duly informed, as it does not bear his signature in token of his having noted down the date of hearing. There is an illegible scribbling of initials on the margin of the order sheet, which the appellant does not accept to be his own. The learned Collector without satisfying himself whether these were the initials of the applicants put down on the first date of hearing dismissed the appeal, Again when a restoration application was presented to him on the next day after the order of dismissal was given, he dismissed it only by saying that the non-attendance of the applicant even if he was not informed of the date of hearing by the court was not a sufficient cause for the restoration of the appeal as it was his duty to find out the date when the appeal was to be heard, the learned Additional Commissioner also said that it was nothing short of gross negligence on the pan. of the appellant to have kept himself uninformed of the date and he also dismissed the appeal. We do not subscribe to this view held by the lower-appellate court as it has been a universal practice of all the courts as reported under Note 8, Order 9, Rule 9 of the C. P. C. 3rd Edition by V. V. Chitley, that a generous construction should be placed on the enactment to restore a suit dismissed in default and a party should not be deprived of a hearing unless there has been some thing equivalent to misconduct or gross negligence on his part. For purpose of appeals under Order 41, Rule 19 the same considerations hold good and if the aggrieved person satisfies the court that he was prevented by sufficient cause from appearing when the appeal was called for hearing it should be restored. In this case we find that the applicant was not duly informed of the first date of hearing after the admission of the appeal and it was necessary for the court to have informed him of the date of hearing. The applicant as soon as he learnt that his appeal was dismissed in default presented an application for restoration on the next day which explains the fact that he was not grossly negligent on his part to put up an application for restoration. To our mined this is a sufficient cause within the meaning of Order 41 Rule 19. In the circumstances, we allow this revision, set aside the orders of the lower-court and direct that the Collector should re-hear the appeal and dispose it of according to law. .;