F.A.O No. 3970 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH F.A.O No. 3970 of 2006 Date of Decision: August 25, 2008 Jaswant Singh .....APPELLANT VERSUS Rur Singh and Another .....RESPONDENTS CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Kuldip Sanwal, Advocate for the appellant. Mr K.S.Rekhi, Advocate for the respondents. T.P.S .MANN, J. Suit for declaration and permanent injunction filed by the appellant was dismissed by the learned trial Court on July 26, 1991. The said decision was challenged by the appellant by filing an appeal on August 26, 1991, which was admitted on August 28, 1991 and the records from the learned trial Court were requisitioned. These records were not received up to February 07, 1998. Under an impression that the appeal was not likely to be heard, the appellant seemed to have lost the track of its hearing. On August 27, 1998, he learnt from his counsel's Clerk that the appeal had been dismissed in default on March 10, 1998. Immediately thereafter he filed an application on August 31, 1998 for re-admission of the appeal but his application was dismissed on October 24, 2005 by learned Addl. District Judge, Gurdaspur vide impugned F.A.O No. 3970 of 2006 -2- order. Hence, he is before this Court by way of appeal under Order XLIII rule 1 ( c) CPC. A plea had been taken by the appellant before the learned lower Court that his absence on March 10, 1998 was on account of the fact that he was not keeping good health. However, the said plea was not accepted, for the reason that he did not place on record any medical certificate. If it is taken that the appellant learnt on August 27, 1998 about his appeal having been dismissed in default on March 10, 1998 the application filed by him for re-admission of the appeal was within the prescribed period of limitation. A perusal of order dated March 10, 1998 would reveal that on that date, none of the parties was present. Even the counsel representing the parties were not there. Under these circumstances, the learned lower Court dismissed the appeal in default for non-appearance. Apparently, the appellant has not been able to give a convincing explanation as to why he could not put in appearance before the learned trial Court on March 10, 1998 and his counsel failing to represent him on the said date. There was remissness on the part of the appellant. However, for that, he can be asked to compensate the respondent, but at the same time his appeal filed against the judgment and decree of the learned trial Court ought to be decided on merits, instead of being dismissed in default. In view of the above, the appeal is accepted, impugned order dated October 24, 2005 declining the application of the appellant for F.A.O No. 3970 of 2006 -3- readmission of the appeal is set aside and the learned lower appellate Court is directed to hear and dispose of the appeal on merits. This is, however, subject to payment of Rs.15,000/- by the appellant as costs to the respondent. As the appeal filed by the appellant, which was dismissed in default by the learned lower Court on March 10, 1998 pertains to the year 1991, it is directed that the learned lower appellate Court shall dispose of the same within four months from September 27, 2008, on which date, the parties along with their respective counsel shall put in appearance before the said Court. (T.P.S.MANN) August 25, 2008. JUDGE Pds