JUDGMENT

M S Sonak, J. - Heard the learned Counsel for the parties.

2. Admit. With the consent of and at the request of the learned Counsel for the parties, the Appeal is taken up for final disposal forthwith.

3. This Appeal is directed against the order dated 5th September, 2019, made by the District Judge-1, North Goa, Panaji (First Appellate Court) dismissing Civil Misc. Application No.144/2019, seeking setting aside of the ex parte Judgment and Decree dated 26th September, 2018, made by the First Appellate Court in Regular Civil Appeal No.60/2013.

4. The Appellants are the original Defendants and the Respondent is the original Plaintiff in Special Civil Suit No.45/2004 instituted before the Senior Civil Judge, Panaji (Trial Court).

5. By the Judgment and Decree dated 18th May, 2013, the Trial Court dismissed the Suit. The Respondent, thereupon instituted Regular Civil Appeal No.60/2013 before the First Appellate Court. On the date fixed for hearing of the Appeal, neither the Appellant nor his Advocate remained present. Therefore, by the Judgment and Decree dated 26th September, 2018, the First Appellate Court allowed the Respondent's Appeal and decreed the suit in the absence of the Appellants or their Advocate.

6. The Appellants claim that they came to know about the aforesaid Judgment and Decree dated 26th September, 2018 after about 4 months and, therefore, they filed the following applications before the First Appellate Court :

(a) Civil Misc. Application No. 83/2019 praying for condonation of delay of 135 days in seeking rehearng of the Appeal under Order 41, Rule 21 of the CPC; and

(b) Civil Misc. Application No.144/2019 praying that the Judgment and Decree dated 26th September, 2018 be set aside and Regular Civil Appeal No.60/2013 be reheard in terms of Order 41, Rule 21 of the CPC.

7. By order dated 30th April, 2019, the First Appellate Court allowed Civil Misc. Application No.83/2019 by accepting that the cause shown by the Appellants, constituted sufficient cause. Impliedly, the First Appellate Court accepted the Appellants' case that they had engaged an Advocate to appear on their behalf in the Appeal and they relied upon the said Advocate to appear on the appointed date and argue the Appeal on their behalf. The First Appellate Court expressly accepted the contention of the Appellants that since they had done everything that was expected of them and there was failure on the part of the Advocate to attend the matter on the appointed date and further to even inform the Appellants about the ex parte decree, the delay in instituting the application under Order 41, Rule 21 of the CPC deserved to be condoned. However, the First Appellate Court, vide Order dated 5th September, 2019 (impugned order) dismissed Civil Misc. Application No.144/2019 seeking rehearing of the Appeal in terms of Order 41, Rule 21 of the CPC. Hence the present Appeal.

8. Now, if the cause shown in Civil Misc. Application No.83/2019 and in Civil Misc. Application No.144/2019 is considered, then, it is apparent that the same is substantially similar to each other. The First Appellate Court, having accepted substantially similar cause in Civil Misc. Application No.83/2019, ought not to have declined to accept the substantially similar cause pleaded in Civil Misc. Application No.144/2019. As was rightly pointed out by Mr. Godinho, there is some element of contradiction in the reasoning reflected in the two orders since, the prior order dated 30th April, 2019 disposing of Civil Misc. Application No.83/2019 was not even challenged by the Respondent and the same has attained finality for want of such challenge. The First Appellate Court in such circumstances, ought to have allowed Civil Misc. Application No.144/2019 as well. On this short ground, the impugned order dated 5th September, 2019 is required to be set aside and the Appellants' application under Order 41, Rule 21 of the CPC is liable to be allowed.

9. No doubt, this will occasion some prejudice to the