NARENDRA NATH TIWARI, J. - (1.) IN this appeal the appellants have assailed the order dated 23.8.2002 passed by the 3rd Additional District Judge, Dhanbad in Miscellaneous Case No. 1/2002 rejecting the petition filed under Order XLI, Rule 19, Civil Procedure Code and refusing to readmit the Title Appeal No. 61/90 which was dismissed for non - prosecution on 12.8.2002. According to the learned counsel for the appellants, the said appeal was dismissed on the ground that the appellants were not taking any interest in the said appeal and they were not ready for hearing when the same was called on for hearing.
(2.) MR . Amar Kumar Sinha, learned counsel appearing on behalf of the appellants, submitted that the said dismissal order of the learned Court below is absolutely without any cogent material and evidence on record, inasmuch as, the Court below committed errors of record in holding that on 5.8.2002 when the appeal was called out, the appellants were not ready for hearing. The learned counsel referred to the order -sheet of the Title Appeal No. 61/90, which is Annexure -2 to the memo of appeal, and drew the attention of this Court on the order dated 5.8.2002 which reads thus : - "Both parties filed Hazri. Appeal called out. Head in part. Put up on 7.8.2002 for further hearing". Learned counsel submitted that the Court below has thus committed errors of record in observing that the appellants were not ready on 5.8.2002 whereas the appellants were Vigilant and ready and the appeal was actually heard in part. Learned counsel submitted that even on 12.8.2002, which was the date fixed for hearing, the appellants were vigilant and attendance was filed on their behalf. However, due to serious illness, the appellant who was in the charge of the case, could not be present in the Court for giving necessary instruction to his lawyer and for the said reason, the appellants ' counsel expressed his inability to argue the said case on that date. Learned counsel submitted that the appeal was pending since 1990 and the appellants were prosecuting the said appeal seriously and there was no negligence and laches on their part. The appeal was already heard in part and even on 12.8.2002 attendance was filed on behalf of the appellant, but due to the illness of the appellant who was making pairvi, necessary instruction could not be supplied to further argue the case and in that view, it was not a case of any negligence on the part of the appellants and the learned Court below has taken erroneous view in refusing restoration of the appeal.
(3.) MR . S.N. Das, learned counsel appearing on behalf of the respondents, though admitted that the appeal was heard in part, yet submitted that on 12.8.2002 the appellants were not ready and their counsel did not argue the appeal and there was no other way for the Court than to dismiss the appeal. Learned counsel further submitted that since the appellant failed to explain and to show sufficient cause for his absence, the Court below has rightly dismissed the miscellaneous case.;