N.M.KASLIWAL, J. - (1.) THIS miscellaneous appeal by the defendant is directed against an order of the learned District Judge, Tonk dated 14 -10 -1987 rejecting the restoration application.
(2.) BRIEF facts of the case are that the plaintiffs filed a suit for ejectment on the ground of default in the payment of rent for more than six months. The suit was decreed by the trial court. Appeal filed by the defendant was also dismissed. Thereafter, the defendant filed a second appeal in the High Court. The High Court allowed the appeal, set aside the judgment and decree passed by both the lower courts and remand the case to the First Appellate Court. In the order of remanded the parties were directed to appear before the First Appellate Court on 8 -8 -1985. In the order of remand a direction was also given for determining the rent to be paid by the defendant. The defendant did not appear on 8 -8 -1985 and thereafter, the appeal was dismissed by order dated 31 -8 -1985. The plaintiffs then submitted a review application and the same was allowed exparte by the Lower Appellate Court by order dated 31 -10 -1985. The defendant in these circumstances filed an application for setting aside the orders dated 31 -10 -1985 as well as 31 -8 -1985. Learned District Judge by the impugned order dated 14 -10 -1987 dismissed the application filed by the defendant. I have heard Mr. S.M. Ali for the appellant and Mr. B.P. Agrawal for the plaintiff -respondents. The High Court while allowing the second appeal filed by the defendant had not only set aside the judgment and decree passed by the First Appellate Court but the decree passed by the trial court was also set aside. In the order of remand a direction was also given to the First Appellate Court to determine the arrears of rent and to give an opportunity to the defendant tenant to pay the same. It was also directed that the Lower Appellate Court will decide the question of default in the payment of rent committed or not by the defendant. Learned Counsel for the appellant has contended that the defendant had not received any intimation from Shri K. N. Tikku, learned Advocate who had appeared for the defendant in the second appeal before the High Court. Learned District Judge did not accept the above allegation made by the defendant on the ground, that no affidavit of Shri Tikku had been filed in support of the above allegation. I am also agreeable with the view taken by the learned Distt. Judge in this regard. Even if it may be considered that the defendant had knowledge about the date 8 -8 -1985 on which he was to appear before the Lower Appellate Court, the fact remains that the appeal could not have been dismissed for non -appearance of the defendant. The High Court had remanded the case with a clear direction that the Lower Appellate Court would determine the amount of rent and shall give time to the defendant for depositing the same. That apart, the High Court had set aside the judgment and decree passed in favour of the plaintiff even by the trial court. In these circumstances the Lower Appellate Court could not have dismissed the appeal filed by the defendant when the original judgment and decree itself passed by the trial court had been set aside. It would be worth -while to note that the plaintiffs themselves feeling the above dilema submitted an application of review and the same was allowed by the learned District Judge exparte and the suit filed by the plaintiffs was decreed. Admittedly, before passing such order on 31 -8 -1985 no notice was given to the defendant. This sort of procedure adopted by the learned District Judge was clearly wrong and against the principles of natural justice. Thus, taking in view the circumstances of the case from any angle, learned District Judge ought not to have rejected the restoration application filed by the defendant.
(3.) IN the result, this appeal is allowed the orders of learned District Judge, Tonk dated 14 -10 -1987 as well 31 -10 -1985 and 31 -8 -1985 are set aside. The parties are now directed to appear before the learned District Judge, Tonk on 27 -10 -1988. Learned District Judge will decide the appeal in accordance with the direction already given by the High Court in the order of remand passed in the second appeal. Parties shall bear their own costs. Learned District Judge will decide the appeal expeditiously as possible.;