Full Judgment Text
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CASE NO.:
Appeal (civil) 1583 of 2007
PETITIONER:
Sarman Singh
RESPONDENT:
Kishan Singh (dead) thr. Lrs.and Ors
DATE OF JUDGMENT: 26/03/2007
BENCH:
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
JUDGMENT:
J U D G M E N T
(Arising out of SLP (C) Nos. 4441-4442 of 2005)
Dr. ARIJIT PASAYAT, J.
Leave granted.
Challenge in these appeals is to the order passed by
a learned Single Judge of the Punjab and Haryana High
Court dismissing the application to recall the order
dismissing the Second Appeal.
The background facts in a nutshell are as follows:
Appellant filed Second Appeal No.4802/2003 before
the High Court questioning correctness of the order
passed by a learned Second Additional District Judge,
Kapurthala. By the said order the first Appellate Court
affirmed the order of the learned Civil Judge, Junior
Division, Kapurthala. The matter was listed on 8.11.2004.
On that day there was no appearance on behalf of the
appellant. The High Court referred to the merits of the
case and dismissed the appeal noting that none appeared
for the appellant. It is to be noted that the appeal was filed
by the defendants.
An application in terms of Order XLI Rule 19 of the
Code of Civil Procedure, 1908 (in short the ’Code’) read
with Section 151 of the Code was filed to restore the
appeal for deciding the same on merits. It was indicated in
the application for restoration as to why there was non-
appearance on the date fixed. In the application it was
categorically stated that the matter was listed at item
No.260 before the learned Single Judge. When the matter
was called learned counsel for the appellant was arguing
another matter before a Bench of Hon’ble the Chief
Justice. In the case at hand respondents were yet to put
appearance. So the assisting counsel was instructed to
attend the Court to note the next date. By the time the
assisting counsel reached the Court, the matter had
already been taken up and dismissed for want of
prosecution. It is submitted that the High Court did not
take note of the aforesaid factual aspects and on the
contrary dismissed the application for restoration on the
ground that the matter was decided on merits.
Learned counsel for the respondents submitted that
since the matter had been decided on merits there was no
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scope for recalling the order.
It is to be noted that in the application for restoration
the reasons for non appearance at the time when the
matter was taken up had been indicated. It was noted that
the matter was fixed for filing of the vakalatnama of the
respondents. There was unintentional absence and the
reason for the same was indicated. The High Court has
not found the reason indicated to be in any manner
incorrect or untrue. Merely because the appeal has been
dismissed on merits that could not have been a ground to
refuse restoration of the appeal.
As rightly contended by learned counsel for the
appellant the reason for non appearance when the matter
was taken up had been indicated. There is no dispute that
the factual scenario as projected by the appellant was the
correct one. Mere fact that the appeal was dismissed on
merits could not have been a ground to refuse restoration.
Accordingly, we set aside the impugned order of the High
Court and direct restoration of the Second Appeal.
The appeals are allowed. There will be no order as to
costs.