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ARIJIT PASAYAT, LOKESHWAR SINGH PANTA
Sarwan Singh – Appellant
Versus
Kishan Singh (Dead) Thr. LRs. – Respondent
What is required for restoration of an appeal dismissed for non-appearance under Order XLI Rule 19 CPC?
Key Points: - Challenge is to the Punjab and Haryana High Court order dismissing application to recall order dismissing Second Appeal [1000403940001] (!) - Second Appeal No.4802/2003 filed by appellant (defendants) dismissed on 8.11.2004 for non-appearance, with High Court referring to merits [1000403940008][1000403940003] - Restoration application under Order XLI Rule 19 CPC indicated reasons for non-appearance: counsel arguing before Chief Justice Bench, matter listed for respondents' vakalatnama, assisting counsel arrived late [1000403940003] - High Court dismissed restoration holding appeal decided on merits, without disputing reasons for non-appearance [1000403940005] - Supreme Court held that reasons for non-appearance were indicated and not found incorrect; mere dismissal on merits not ground to refuse restoration [1000403940005] (!) - Supreme Court set aside High Court order and directed restoration of Second Appeal, as factual scenario projected by appellant was correct [1000403940006] (!) - Appeals allowed with no order as to costs [1000403940007] (!)
JUDGMENT
Dr. Arijit Pasayat, J.—Leave granted.
2. Challenge in these appeals is to the order passed by a learned Single Judge of the Punjab and Haryana High Court dismissing the application to recall the order dismissing the Second Appeal.
3. The background facts in a nutshell are as follows:
Appellant filed Second Appeal No.4802/2003 before the High Court questioning correctness of the order passed by a learned Second Additional District Judge, Kapurthala. By the said order the first Appellate Court affirmed the order of the learned Civil Judge, Junior Division, Kapurthala. The matter was listed on 8.11.2004. On that day there was no appearance on behalf of the appellant. The High Court referred to the merits of the case and dismissed the appeal noting that none appeared for the appellant. It is to be noted that the appeal was filed by the defendants.
4. An application in terms of Order XLI Rule 19 of the Code of Civil Procedure, 1908 (in short the ‘Code’) read with Section 151 of the Code was filed to restore the appeal for deciding the same on merits. It was indicated in the application for restoration as to why there was non-appearance on the date fixed. In the application it was
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