IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B. Civil Writ Petition No.8037/2007 {Bhorya Versus Ramdhan & Others} Date of Order :: 3rd September, 2008 PRESENT HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN Mr. Gajendra Singh Rathore for the petitioner Mr. Neeraj Batra on behalf of Mr. Chandra Pal for the respondents no. 1 and 2 BY THE COURT: Admit. Mr. Neeraj Batra on behalf of Mr. Chandra Pal appears for respondents no. 1 and 2. The respondent no.3 is only a formal party, therefore, its service is dispensed with. 2. Heard learned counsel for the parties. 3. This writ petition on behalf of petitioner is directed against impugned order dated 13th July, 2007, whereby the first appellate court rejected his application under Order 9 Rule 9 readwith Order 41 Rule 19 CPC for restoration of the appeal. 4. The learned counsel for the petitioner contended that his appeal was dismissed in default on 16th December, 2006 and he moved an application within thirty days i.e. on 5th January, 2007 itself with an explanation that appellant was 70 years old and his counsel -2- could not attend the matter on that day because of his illness, but appellate court committed an illegality in rejecting the application. 5. The learned counsel for the respondents defended the impugned order. 6. I have considered the submissions of learned counsel for the parties in the light of reasons assigned by the court below for rejecting the application and after considering the same, I find that learned court below has committed an illegality in rejecting the application for restoration of the appeal, which was filed within time. In these circumstances, the impugned order cannot be allowed to stand. 7. Consequently, the writ petition is allowed. The impugned order dated 13th July, 2007 passed by Additional District and Session Judge, Laxmangarh, District Alwar is set-aside. The appeal filed by petitioner is restored to its original number. The court below is directed to decide the appeal on merits. 8. Cost is made easy. (NARENDRA KUMAR JAIN),J. DK