1 S.B. CIVIL MISC APPEAL NO.263/1996 (LRs of Ghasi Khan Vs. Laxmi Chand) Date of Order : 27.10.2009 HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. R.K. Thanvi, for the appellant. Mr. B.N. Kalla, for the respondent. Heard learned counsel for the parties. In this appeal, the order dated 1.3.1996 passed in appeal No.45/94 is under challenge whereby the application filed by appellant for restoration of the appeal was rejected. According to the brief facts of the case, an appeal was filed by the appellant before the District Judge, Jodhpur against the order dated 19.4.1994 passed by Civil Judge, Jodhpur in Civil Misc. Case No.71/81 whereby the application filed by the appellant in the suit filed under order 9 Rule 13 CPC for setting aside the exparte decree was rejected. The appeal was dismissed in default by the Addl. District Judge No.1, Jodhpur on the ground that the counsel for the appellant did not appear before the Court on 16.10.1995 in spite of the fact that he was called thrice by the Court. Learned counsel for the appellant invited the attention of this court towards the judgment of this Court reported in 1993 (2) RLR 450 (Shyam Das & Anr. Vs. Praveen Kumar & Ors.), and submits that in above case it has been held that on the ground of absence of 2 counsel for hearing, the matter should not be dismissed normally. Further, it is observed in above case that in the event of filing an application, if sufficient cause shown by the counsel for preventing him from appearing in the Court then the said fact is required to be considered for restoration of the case. In this case, admittedly, the appeal was dismissed on 16.10.1995 at 3 p.m. and just after one day, on 17.10.1995, the restoration application was filed before the appellate Court for restoration of the appeal but vide impugned order dated 1.3.1996, the said application was dismissed by the Add. District Judge No.1, Jodhpur, which is under challenge in this appeal. Learned counsel for the appellant submits that the order impugned may be set aside because the appeal was dismissed for non appearance of the advocate and for that litigant should not be allowed to suffer. Per contra, learned counsel for the respondents submits that appellant is habitual for non-appearance in the Court. For this purpose, he has invited attention of this Court towards the fact that the judgment and decree was passed by the trial Court exparte because appellant did not appear before the trial Court and thereafter in appeal also due to non appearance of advocate, learned Addl. District Judge dismissed the appeal, therefore, on the basis of the conduct of the appellant he is not entitled to get any relief in this appeal. 3 I have considered rival submission made by both the parties. In this case, the order dated 1.3.1996 is under challenge which is passed upon the application filed on 17.10.1995 for setting aside the order dated 16.10.1995, which is passed in absence of the appellant's counsel. Meaning thereby, just after one day of passing the order dated 16.10.1995, an application was moved before the appellate Court with the reasons that advocate was busy in another Court. In my opinion, this aspect of the matter was to be considered by the trial Court in right prospects but learned appellate Court while taking strict view rejected the application filed by the counsel for restoration which is filed just after one day after dismissal of appeal in default. In my opinion, the order impugned is not justified because admittedly for non- appearance, affidavit of the counsel was also filed before the appellate Court and there was no reason to disbelieve the affidavit filed by an advocate on oath. In this view of the matter, the order impugned dated 1.3.1996 is hereby set aside. Consequently, the order dated 16.10.1995 dismissal of the appeal in default is also set aside and appeal is hereby ordered to be restored in its original number and the matter is hereby remitted to learned Addl. District Judge, No.1, Jodhpur for fresh decision with the direction that the appeal itself shall be decided on merit within a period of 4 two months from the date of receipt of certified copy of this order because this appeal is pending since 1996 and litigation is going on since 1976. However, in the interest of justice, the appellants shall pay cost of Rs.5,000/- to the respondent, which is payable within a period of fifteen days from today. Record of the case may be sent back to the concern Court. Both the parties shall appear before the appellate Court on 10.11.2009. Till disposal of the appeal by the appellate Court, the stay order granted by this Court shall remain in force. (Gopal Krishan Vyas), J. arun/