Honble MATHUR, J.–By the impugned order dated 23.1.2006, learned Single Judge has dismissed the Restoration Application.

(2). Necessary facts for disposal of the instant appeal are that the appellant filed second appeal against the judgment & decree dated 1.11.2002 passed by the learned District Judge, Rajsamand, through Mr. Manish sisodia, Advocate. As the objections pointed out by the office were not removed, the matter was listed before the Court. Learned Single Judge passed the peremptory order dated 2.12.2004 as follows:

``Learned counsel for the appellant is granted three weeks time to remove the defects. In case the defects are not removed within aforesaid period, the second appeal shall automatically stand dismissed without reference to the Court.

(3). In view of the peremptory order, the second appeal stood dismissed on 18.1.2005.

(4). The appellant filed an application under Order 41 Rule 19 read with Section 151 C.P.C. seeking restoration of the appeal on the ground that the counsel for the appellant Mr. Manish Sisodia was not aware of the peremptory order passed on 2.12.2004 as he had not appeared on the said date on account of sad demise of his father Shri D.S. Sisodia, Senior Advocate only three days back i.e. 29.11.2004. He was under the impression that the case was adjourned. Thus, he pleaded regret for the bonafide misunderstanding and prayed for re-admission or restoration of the appeal to secure the ends of justice. Learned Single Judge having taken note of unfortunate death of Senior Counsel shortly before passing of he peremptory order, did not consider it to be a fit case for restoration, as in his opinion, sufficient time was granted while making the peremptory order. The impugned order dated 23.1.2006, reads as follows:-

``Heard learned counsel for the petitioner.

Admittedly, the peremptory order has not been complied with, and more than sufficient time had already been granted in the past right from 2003, and therefore, peremptory order was made in December, 2004.

In these circumstances, I do not find any sufficient ground to restore the appeal. The order was passed in the presence of the counsel appearing in the court. It is unfortunate that the Senior counsel had died shortly before passing of the peremptory order, but nonetheless sufficient time was granted while making the order peremptory. The restoration application is, therefore, dismissed.

(5). It is contended by the learned counsel that while disposing of the Restoration application, learned Single Judge neither addressed to the factual aspects i.e. the reasons urged for seeking restoration nor the legal aspects i.e. binding decisions of the Apex Court and this Court laying down the parameters for the restoration of the matter dismissed in default or for non- compliance. A bare reading of the impugned order shows that the learned Judge has only justified the peremptory order passed by him. Thus, the impugned order suffers from the total non- application of mind.

(6). Having heard Mr. Manish Sisodia, learned counsel for the appellant, we are of the view that the instant appeal deserves to be allowed. It will not be out of place to mention that India has written Constitution wherein powers of the three organs of the State have been demarcated and defined. It envisages separation of powers and expects each organ of the State to keep to its own area. India is governed by the Rule of law based on the principle of equity. The Legislature contemplating possible eventualities, which may arise in a litigation provided mechanism in the form of civil code for administration of justice between parties. In the present context legislative policy is to dismissal of suit under IX, in certain eventualities. The legislature in its wisdom also provided provision for restoration and setting aside ex-party decree. Legislature has provided similar provision for appeals under Order 41. Thus, the policy of the legislature is to that in certain eventualities suit or appeals ca

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