^. y js/- c-v IS TBS BIQB SOSJST @F CBVWTISSMa M BIifSMS. r. P.So. t'3^^ / 2007. PSTITIQSSaS s 4PPSti_4»TS BSFWSMTS. .<^--. ^••"s^<.--'"'r '" .***'- //^.t^*'"\-^> K**' ^'•"^.-•-^ ^^'"T t. Prlneipal, Ka.lyan Kahaoielyalaya, SeetQr-7, Bhtlai Sagar. Bar^(e.e^^y^ (Throughs Shri J.P.Ilishre^Prinelpal) «/ ..-^ t.^- rsaws aSSPOVBSSTS t PiAISTIPPS. Iv^C^^ • . ^..,.. "»'ilai-3 \ OandBl •^-i ,. {-. i-,. .RBtgl ."• I".; \ ^'^.'!b '^ \ l.K'2l-2-"05 A'? M: " " / s- Prestdent, Chhattisgarh Kalyan Sa»tti, Kalyan tlahavidyalaya, Secter-7, Bnila.i Kagar. Qirg (Q. Q. ) (Throughs Shri S.P.ilishr'ayrestdentj Sutan Babu faunarya S/o. Puran- Lfil Kav.mar'ya, aged J1 years, restdent of Qa.arter So. 13-0, Street-W, Seotor^I, Bhtlsi Sagar, Sltrg fa.ff.). . S'ilsendra Babu Kaunarya, S/e. Puran Lal Kawnarya, sgeS. 34 years, r'esident of Quarter So, 13-0, Street-10, Seotsr^-l Bhilsi ffagar, Burg (C.S.). MswaMWM 6F fiUT PETITIQS esBsa_ Aanci.s 23^ OF WSSTITBTIQS QT IVSIA. 2. €> ^' $ HIGH COURT OF CHHATTISGMW AT EMLASPUR Sinale Bench: Hon'We Shri Jurtfee Prashant Kumar Mishra Wfrit Petition No.1369 / 2007 PETITIONERS RESPONDENTS Vereys Principal, t^ilyan Mahavidyalaya and another Nutsm Babu ^iumarya and another Shri B.P. Mishra, counsel fw the p^itioners. None for Ihe respondenls. WRH- PETITION UNDER ARTICLE 227 OF THE CONSTrTUTION OF INEHA ORALC»DER (09.09.2010) The p^itioners are aggrieved by the order passed by the appeltate Court refusing to allow the apptication for restorationof the firet appeal, whtoh was dismissed for want of prosecution on 04-02- 2SX>6. The suit preferred by tiie respondents seekir^ damages was decreed on 29-11-2002. The petitioners preferred Firet Appeat in ttie Court of XI Additionat Di^rict Judge (FTC), Ding. The said appeal was dismissed for want of prosecution on 04-02-2006. (2) The petitioners moved an application for restoration of the appeal under Order 41 Rute 19 of C.P.C. vide Annexure P/6 on 04-03-2006. The application was supported with the affidavit of the counset appearing for the petitioners. The Court below has dismissed the said application for restoration on the ground that the reason assgned for non-appearance is not satisfactory. 1-. (4) Leamed Court below has refused to asxept the submissjpn and contents of the affidavrt fited by the Advocate by obsenring that there was defautt on appearance on previ<Ris dertes atso and that the appttcation and affidavits have not been singed or submitted by the appellant but they have bew signed by iawyer. (5) Learned counset for the petitioners has argued that the Court betow should have adopted a riberat approach while considerir^ the apptication and shoukt have allowed the prayer for restoration. (6) tn the mattere of Raffi^ and anofhervs. Hksishflal and anotfter reported in ASR 19B1 SC i400, SadSk Man smd another Vs.Rssa Dhyan Hajam ancf othws reportal in 1982 ft) SCC 372, Cfrilwtor, Lancf Acgofeiffcm, Anan&iag and wxrfher Vs. llfet. KaBft and off»ers reported in AIR 1SS7 SC 1353, Roftff Singhal and ofhers Vs. Princlpal, Jawahar N. Wdyalaya ancf offrere reported in SW AIR SCW 84, T. fWshnaswamy Vs. SmL (Wan^amma reported in MR 200? Andhia Rractesh 37, and Rsyasttian State /ndustr<a» Dsvetopmwit aod hmeshwent Corporatton LtA, Jorfhpur Vs. Ws. WtotS Tftreacf A»«s,Jooffrpur reported in A/R 2003 R^sttism 227 the Hon'ble Supreme Court and the High Courts of Andhra Pradesh and Rajsthan have held that in mattere concemir®condonation of detay and default in appearance the Courts shouki adopt a liberal and justice oriented approach and every ewleavor should be made to dispose of the cas^ on merits after givir®c^portunity of hearing to the parties concern, untess it is proved that fhe defautt is deliberate and mala ficte ^ancf has been so made to thwart the process of administration of /justice. .-^-——^—- ^ i'^ ^. , ^ y ''•';..l:3-!a.» "«^» t< s '%^swy^, •2, (7) In the present case the lawyer appearing for the petitionere has swearecl affidavit which is acceyAabte in view of decisaon of Andhra Pradesh High Court in AIR aX}1 Andhra Pradesh 37. In the affidawt of the lawyer it has been stated that he was busy in connection with the rituals and ceremony of his own mamage and therefore he coutel not note down the date of hearir^ in his tawyer's diary and thusthe defautt in appearance is bona fide. There is nothir^ in the order passed by the Court below to indtoate that the respondents have controverted the said statement of fact made by the lawyer in his affidavit. Merely because the affidawt has fceen submitted by the lawyer and not by the party the Court betow should not have refused to restore the application under Order 41 Rule 19 of C.P.C. (8) Consequently, the writ petition succeeds and is allowed. The impugned order is set-aside. The appeltate Court shall now decide the appeal on its own ments. Sd//- Prashant Kumar Mishra Judge h'. ^ fe- aiBia*B'uL?ifaw»uj^e^^snft9e