Satpal Singh Vs.
Chunni Lal (D) Tr.Lrs.  INSC 1057 (13 May 2009)
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.3542 OF 2009 (Arising out
of SLP(C) No. 15587 of 2008) Satpal Singh ..........Appellant Versus Chunni Lal
(since deceased) through LRs. ........
Respondent ORDER H.L.
is an appeal by Special Leave against the judgment and order dated 23.5.2008 of
the High Court of Judicature for Rajasthan, Jaipur Bench, in S.B. Civil Misc.
Appeal No. 759 of 2002. We grant special leave and dispose of this appeal as
respondent herein, had filed a suit for eviction against the appellant in the
year 1993. The suit was decreed by the Trial Court on 31.1.2001, granting
possession of the suit schedule premises to the respondent.
appeal filed against the said judgment and decree was dismissed for default on
19.4.2002 by the Additional District Judge due to non- appearance of the
appellant and his learned counsel. The appellant then moved an application
under Order 41 Rule 19 of the Code of Civil Procedure read with Section 5 of
the Limitation Act, 1963 for restoration of the First Appeal No. 4 of 2001. The
same was dismissed on 19.4.2002.
appellant filed a second appeal challenging the correctness or otherwise of the
order dated 19.4.2002 in S.B. Civil Misc. Appeal No. 759 of 2002. The appeal
was dismissed vide judgment dated 23.5.2008. The Single Judge had come to the
conclusion that the appellate Court was justified in dismissing the application,
holding that there was no sufficient cause shown either for the condonation of
delay or for setting aside the ex- parte order, and thereby confirmed the order
of the appellate Court.
appellant, in the application filed for restoration of the appeal had stated,
that, on receiving the intimation of the serious illness of his elder brother,
he immediately left to see his brother on 15.1.2002. It appears from the Death
Certificate of Balbir Singh brother of the appellant that Balbir Singh died on
20.1.2002, following the day when the appeal was fixed for hearing i.e.
19.1.2002, before the appellate Court. It is also the case of the appellant
that his wife met with an accident and due to which he was busy in attending
her for almost one and half months. In view of the above unforeseen events, the
appellant could not appear before the Court, on the day when the appeal had
been fixed for hearing. The appellant had also stated that it was the duty of
the counsel to appear in the matter when it was listed for hearing and also to
intimate his client about the outcome of the appeal. It was further stated,
that his learned counsel for the reason best known to him also did not appear
on the date fixed for hearing of the appeal nor he intimated about its
dismissal of the appeal for default.
gone through the explanation offered in the application filed for restoration
of the appeal, in our considered view, the learned Single Judge was not
justified in dismissing the application for restoration of First Appeal No. 4
of 2001 for default under Order 41, Rule 19 of the Code, on the ground of non-
appearance of the appellant or his learned counsel. We have no doubt in our
mind, that the appellant was justified in moving the application for restoration
of the appeal and setting aside of ex-parte order particularly when his brother
had died and his wife had met with an accident during the relevant period.
the result, the appeal succeeds and is allowed. The order passed by the High
Court in S.B. Civil Misc. Appeal No. 759 of 2002 dated 23.05.2008 and the order
passed by the first appellate court in Appeal No. 4 of 2001 are set aside. The
first appellate court is directed to take on board the appeal and decide the
appeal on merits within an outer limit of six months from the date of receipt
of certified copy of the order passed by this Court. No order as to costs.
[ H.L. DATTU ]