i),\^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR (CHHATTISGARH) M.A. No. l^ Of 2006. lingl& Bench APPELLANT .PLAINTIFF RESPONDENTS ./' ^ 6EFENDANTS :- Dukhuram Gupta, son ofHari Prasad Gupta, aged 80 years, Occupation Agriculturist, resident ofBaniyapara, Kawardha, District Kawardha (C.G.). VERSUS :^1< Naresh Chandravanshi, son of Muniram Chandravanshi, aged 40 Years, resident ofKutcheripara, Kawardha, Distt. Kawardha (C.G.), 2. Dhunwa alias Raghuwar Prasad, son »^' of Prabhu Prasad Mishra, aged 38 years, Occupation Agriculture, resident of Kabratola, P.H. No. 3, R.I.C. Bodla, District Kawardha ,(C.G.). \\y APPEAL UNDER ORDERM RULE 1 (1} OF CODE OF CWIL '%^: ..<^y ^ PROCEDURE F?r \r>- HIGH COURT OF CHHATTISGARH. BILASPUR SSNGLE BENCH : HON'BLE SHRI PRASHANT KU^IAR SV1SSHRA. J. M.A.No.1005 of 2008 APPELLANT Dukhuram Gupta. Versus RESPONDENTS Naresh Chandravanshj and another. Miss Sarina Khan, couhsel forthe appeilant. ORAL (01^07/2011) Heard. (2) By the impugned order the learned appellate Court has rejected appellant's application under Order 41 Rule 19 of C.P.C. for restoration of appe^J which was dismissed for want of prosecution on 22nd March, 2005. (3) On perusal of the order it appears that the appea! was fixed for hearing on 22nd March 2005, however, on the said date the appeliant who is aged about 85 years had instructed hjs Lawyer, that because of Dwadasi festival he may take sometime to reach to the Court and in the event ihe case is called on in the early hours, he should take care of the appeal. The matter was taken up in the first half and was dismissed in default which came to the knowledge of the Lawyer at about 3.00 p.m. i.e. in the second ha!f. (4) Appiication under Order 41 Ruie 19 of C.P.C. was moved without inordinate delay. (5) !n th^ matter of G.P. Srivsstava vs R.K. Raizada and others reported in 2000(3) SCC 54 it has been held by the Hon'bie Supreme Court that the words sufficient cause occurring in Order 9 Rule 13 of C.P.C. and under Section 5 of Limitation Act has to be construed liberafjy so as to advance substantial justice. Similar law has laid down in thje matter of State Bankoflndia vs. Chandra Govmdji (Km.) reported in 2000 (8) SCC 532. /,^^^^^ , VlPl 1 »^f^ ^ -^- (6) In the present case also a prayer for restoration was moved on the very next date J.e. 23rd Msrch, 2005, whereas the appeai was dismjssed for want of prosQcution on 22nd March, 2005. (7) in the opinion of this Court, the appeiiate Court has taken a pedantic and hyper technical view of the matter and has passed the order with material irregularity in the exercise ofjurisdiction. (8) SJnce the prayer is only for restoration of the appeai pending before the Court below, this Miscellaneous Appeal js disposed of without notice to the respondent as merits of the case are sti!l to be considered by the Court below. (9) At this stage learned counsel for the appellant submits that in the meanwhile the appellant has died. Learned counsei for the appeilant would be at liberty to move appropriate application for bringing on record the legal representatives ofthe appellant before the Court below. (10) The appellant shall appear before the Court beiow on 26/07/2011 and thereafter the Court beiow shall issue notice to the respondent for hearina of the appeal on merits. (11) The appeal stands ailowed. — Sd/- Prashant Kumar Mishra Judge Y^