./ APPELLANT ^PLAINTIFF |NNNIWW»WWlNlN1g^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR fCHHATTISGARH) M.A. No." 16-o l Of 2006. :yDukhuram Gupta, son ofHari Prasad Gupta, aged 85 years, Occupation Agriculturist, resident ofBaniyapara, Kawardha, District Kabirdham (C.G.). VERSUS :- Naresh Chandravanshi, son of Muniram Chandravanshi, aged 43 SPONDENT 4)EFENDANT .^'^. Kr'^2' ** Years, Occupation Lawyer, resident .•••""&w\-'Y'/(?i.J-f ^:^€^ ^^^u A^8',A.--" .^7-""' ofKutcheripara, Kawardha, Distt. ^3 Kabirdham (Chhattisgarh). APPEAL UNDER ORDER4t RULE 1 (i) OF CODE OF CIVIL ~w^(r PROCEDURE ^^ ^ft^ ^ HIGH COURT OF CHHATTSSGARH. BILASPUR SINGLE BENCH : HON'BLE SHRJ PRASHANT KUMAR MISHRA. J. M.A.No.1001 APPELLANT Dukhuram Gupta. Versus RESPONDENT Naresh Chandravanshi. Miss Sarina Khan, counsel for the appejlant. ORAL ORDER (01707/2011) Heard. (2) By the impugned order the ieamed appellate Court has rejected appeiiant's application under Order 41 Ruie 19 of C.P.C. for restoration of appea! whlch was dlsmissed for want of prosecution on 22 March, 2005. (3) On perusai of the order it appears that the appeai was fixed for hearing on 22"d March 2005, however, on the said date the appeHantwho Is aged about 85 years had instructed his Lawyer, that because of Dwadasi festival he may take sometime to reach to the Court and in the event the case is called on in the eariy hours, he should take care of the appeal. The matter was taken up in the first half and was dismissed jn default which came to the knowiedge ofthe Lawyer at about 3.00 p.m. j.e. in the second haif. (4) Application under Order 41 Rule 19 of C.P.C. was moved without inordinate delay. (5) In the matter of G.P. Srivastava vs R.K. Raizada an^ others reported in 2WO (3) SCC 54 it has been held by the Hon'ble Supreme Court that the words sufficient cause occumna in Order 9 Rule 13 of C.P.C. and under Section 5 of Lsmitation Act has to be construed liberaiiy so as to advance substantial justjce. Simiiar law has iaid down in the matter of State Bank of!ndf8 vs. Chandra Govmdn fKmJ reported in 20W (B) SCC 532. .^T^"^._. ^'"....'^ ^- '/ "w€iy^/i 3&^' (? - a.- (6) In the present case also a prayer for restoration was moved on the very next date i.@. 23rd March, 2005, whereas the appeai was dismissed for want of prosscut'Qn on 22nd March, 2005. (7) In the opinion of this Court, the appellate 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) Since the prayer is oniy for restoration of the appeai pending before the Court below, this Miscellaneous Appea! is djsposed of without notice to the respondent as merits of the case are stiii to be considered by the Court below. (9) At this stage learned counsel for the appellant submits that in the meanwhile the appeliant has died. Learned counse! for the appe!Sant would be at iiberty to move appropriate application for bringing on record the lega! representatives of the appeliant before the Court below. (10) The appellant shall appear before the Court below on 26/07/2011 and thereafter the Court below shall issue notice to the respondent for hearing of the appea! on merits. (11) The appealstands allowed. Sd/- Prashant Kumar Mishra Judge )c-