FAO.No. 422/2004. 6.1.2009. Present: Mr. Bal Krishan Sood, Advocate for the Appellant. Appellant-Savitri Devi has assailed the impugned order dated 18th August, 2004 passed by Addl. District Judge (I), Kangra at Dharamshala, H.P. in Civil Misc. Appeal No. 69-P/03 titled as Smt. Gaytri Devi Vs. Smt. Savitir Devi and another dismissing the appellant’s application under Order 41 Rule 19 C.P.C. The appellant filed an appeal before the Additional District Judge (I), Kangra at Dharamshala impugning the judgment and decree dated 8th January, 2003 passed by Sub Judge, Ist Class (I), Palampur in Civil Suit No. 225/98 titled as Savitri and another Vs. Gaytri Devi. The said appeal was dismissed on 15th May, 2003 for the reason that neither the appellant nor her general power of attorney holder was present in the Court on 15.5.2003. On 12th June, 2003 the appellant moved an application under Order 41 Rule 19 C.P.C. for setting aside of the order dated 15th May, 2003 and re-admission of the appeal. The application was opposed by the non- applicants-respondents herein. The lower appellate Court framed the following issues: 1. Whether the appellant has sufficient cause for this non appearance in the court on 15.5.2003 and is entitled for setting aside the order of dismissal dated 15.5.2003 and for admission of appeal, as alleged?. …OPP. Opportunity to lead the evidence was afforded to the parties. After perusing the material on record, the application was dismissed on the ground that the applicant had failed to prove that she was prevented from any sufficient cause to cause her presence in the court on 15.5.2003, either due to her own illness or due to the illness of general power of attorney holder. The present appeal was admitted on 4th November, 2005. The actual date notice has been issued to the respondents. However, none has appeared on behalf of the respondents in spite of the service effected upon them. I have heard learned counsel for the parties and also gone through the record. The appeal before the Addl. District Judge was filed on 21st February, 2002. From the order sheet it is evident that on all the dates of hearing of the case the appellant general power of attorney was present in the Court. From the record it is evident that the matter was being persuaded diligently by the power of attorney holder Sh.V.S.Chauhan. It was only on 15th May, 2005 when neither the appellant nor the general power of attorney holder was present in Court and consequently the appeal was dismissed. In the application the appellant has categorically stated that the general power of attorney holder suffered from dysentery and as such could not travel from Shimla to Kangra. The applicant has also placed on record the medical prescription slip mark-‘A’ from which it is evident that the appellant was undertaking treatment at I.G.M.C.Shimla. The finding of the lower appellate Court that the said prescription slip mark-‘A’ does not pertain to the medical treatment for heart coronary disease is correct. But, be that as it may be from mark-‘A’ it is evident that the appellant was undertaking medical treatment at Indira Gandhi Medical College and Hospital, Shimla on 21st April, 2003. Further the appellant has produced on record a certificate mark-‘C’ from which it is evident that the general power of attorney holder travelled on 18th May, 2004 from Shimla to Dharamshala. He is a senior citizen and had no reason to falsely depose particularly when he had been pursuing the matter diligently. The reason that he could not travel to Dharamshala from Shimla to attend the case on 15th May, 2003 was that he was suffering from dysentery. This fact stands proved from the certificate mark-‘B’ issued by Dr.Amar Chand Dhiman, Shimla. The general power of attorney holder was advised three days rest from 14th May, 2003 to 16th May, 2003. The findings that the appellant had tried to perpetrate a fraud on the court by taking contradictory pleas are not correct. In my considered view, the finding of the lower appellate Court that the appellant and her general power of attorney were negligent in causing appearance appears to be incorrect. Without any delay the application for recall of the order was allowed. The court ought to have been more liberal in exercising the jurisdiction vested in it. Keeping in view the facts and circumstances I am of the considered view that the rules and procedures are hand maid of justice and it is duty of the court to facilitate the cause of justice. For the aforesaid reason, the impugned order dated 15th May, 2005 dismissing the appeal is set aside and the appeal is restored to its original position. Since the matter pertains to the year 2003, the First Appellate Court is directed to decide the appeal as expeditiously as possible and preferably on or before 30th April, 2009. The appeal is accordingly disposed of. Mr. Sood undertakes to cause appearance on behalf of the appellant before the lower appellate Court on 16th February, 2009. The record be sent back immediately. (Sanjay Karol), Judge. January 6, 2009(R)