I.S.ISRANI, J. - (1.) THIS Civil Special Appeal under Section 18 of the Rajasthan High Court Ordinance read with Order 43, Rule 1, CPC has been filed against judgment of learned Single Judge, dated January 15, 1986, in SB. Civil Miscellaneous Restoration Application No. 61/1986, where by the application filed by the appellants Under Order 41, Rules 19 read with Section 151, CPC for re -admission of hearing of S.B. Civil First Appeal No. 8/1975 was dismissed in default.
(2.) BRIEFLY stated the facts of the case are that the appellants filed first appeal against the judgment and decree of the learned Additional District Judge, Alwar, passed on November 30, 1974, which was dismissed in default of appearance of both parties on February 7, 1985. A restoration application was filed by the appellants, which was dismissed on January 15, 1986. The main ground, along with some other grounds on which the application for restoration was dismissed was that it was time barred by 258 days. The contention of Shri R.M. Lodha, counsel for the appellants is that the appellants had engaged N.M. Kasliwal, as an Advocate, at the relevant time and is now adorning to the Bench as Judge. After his elevation in 1978, Shri Radha Vallabh Agarwal was engaged as Advocate. Shri Dilip Singh appeared alongwith Shri N.M. Kasliwal and Shri Radha Vallabh Agarwal as junior in the case. It is stated that even though the appeal was dismissed in default on February 7, 1985, an application for execution of decree was moved in trial court only on November 16, 1985. One Ramesh, clerk of Shri K.N. Bhargava, Advocate came to know of these execution proceedings and he could contact Ramavtar appellant only on February 20, 1985 and informed him regarding dismissal of the appeal and filing of the execution application. Immediately, thereafter appellant Ramavtar contacted Shri R.N. Lodha, Advocate and after obtaining certified copy of the order of dismissal of appeal on November 22, 1985, an application for restoration was filed on November 25, 1985. It is, therefore, asserted that the appellants did not delay in filing the restoration application, after they came to know about the fact of the dismissal of their appeal. It is also pointed out that on the date on which the appeal was dismissed, none of the parties were present in the Court and, therefore, it is asserted that the respondents have no right to be heard regarding the restoration of the appeal. It is further pointed out that the remark of the learned Single Judge that the appellants did not care to ascertain about the progress of the case for about five years after engaging Shri Radha Vallabh Agarwal and Shri Dilip Singh is uncalled for. It is also contended that even though an affidavit was filed in support of the restoration application by Ramavtar appellant, but still the learned Single Judge insisted that affidavits of Shri Dilip Singh, Advocate and Shri Ramesh, clerk of K.N. Bhargava, Advocate should have been filed and that specific date regarding the death of Shri Radha Vallabh Agarwal should have been mentioned in the application. Shri Lodha also pointed out that in the cause list dated February 7, 1985, the title of the appeal was wrongly printed and, therefore, on this account also, it was not possible for the appellants to have come to know regarding listing of their appeal.
(3.) SHRI R.S. Kejriwal, counsel for the respondents on the other hand has asserted that it was necessary for the appellants to have filed affidavits of Shri Dilip Singh, Advocate and Shri Ramesh, which was not done by the appellants. It is also asserted that late Shri R.V. Agarwal was not engaged as lawyer by the appellants but was given power to appear on behalf of the appellants by Shri Dilip Singh, Advocate.;