Previous negligence a ground for refusing restoration of dismissed appeal.

This is an appeal filed against the order of the Subordinate Judge, Bapatla, dismissing the appellant’s application under Order 41, rule 19 of the Civil Procedure Code, to set aside the order of dismissal for default of an appeal and restore the same to file. It is common ground that on 9th September, 1947, on which date the appeal stood finally posted, the appellant did not turn up and did not produce the revenue extracts as required by the Court. In the application for restoration the appellant alleged two grounds for his default: one was the illness of his sister, who, according to him, was ailing for over two months before that date and ultimately died in his house on 3rd September, 1947, that is, six days before the date on which the appeal was posted. He was also ailing for about a month at or about that time. On these two grounds he prayed that the appeal should be restored to file after setting aside the order dismissing his appeal for default. The allegations in the affidavit filed in support of the application were not traversed by a counter-affidavit and it may, therefore, be assumed that the allegations made therein are ture. The learned Judge, however, dismissed the application on the ground that there was a prior default of the appellant and that he did not properly prosecute the appeal in spite of previous adjournments. If there were valid excuses for his absence on the date on which the appeal was dismissed for default, I do not think that previous negligence or want of diligence on the part of the appellant to prosecute the appeal should be made a ground disentitling him for restoration and have the appeal restored. In view of the uncontradicted fact that his sister died on 3rd September, 1947, and as the appeal stood posted for hearing within ten days from her death, presumably the appellant had to attend the funeral ceremonies of his sister and he was also unwell for over a month. In these circumstances, the learned Judge ought to have accepted the application and restored the appeal to file.

In the result, the appeal is allowed and the order of dismissal for default is set aside and the appeal is directed to be restored to file. As there were laches on the part of the appellant in not informing his vakil even about the grounds of his absence, I think it is a case in which he should be directed to pay the costs of the respondent in this Court and also in the lower appellate Court. The appellant will therefore pay the costs of the respondent in this appeal and also costs of the petition in the lower Court which would be taxed by the lower Court.

K.C. ------ Appeal allowed.