Sarman
Singh Vs. Kishan Singh (Dead) Thr. Lrs.And Ors [2007] Insc 332 (26 March 2007)
Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA
(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 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.
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