JUDGEMENT :- This is a plaintiffs appeal arising out of an order dismissing his application under O.41, R.19 Civil P.C. for restoration of the appeal dismissed in default.

2. The judgement under appeal makes amazing reading and the facts of the case are also extraordinary. First Appeal No. 497 of 1957 was initially filed by the appellant in the High Court on 19-12-1957 against the judgement and decree dated 20-9-1957 of the IInd Additional Civil Judge, Meerut in Original Suit No. 22 of 1953. Later the Appeal was transferred to the Court of the Ist Additional District Judge, Allahabad and was received in that Court on 11-12-1967 and 9-1-1968 was fixed for hearing. The notice of this date was sent to the appellant by registered cover which is alleged to have been received back with an endorsement dated 21-12-1967 of the postman to the effect that the addressee had refused to accept the notice. The appellant was represented in the High Court by two eminent counsel namely, Sarvasri Kanhaiya Lal Misra and A.P. Pandey, who are no more. It is stated that the notice of the aforesaid date fixed for hearing of the appeal was sent to these counsel as well. The notice with regard to Sri Kanhaiya Lal Misra was received by his clerk Sri Brij Kishore and the notice sent to Sri A.P. Pandey bore an endorsement made by him to the effect that he had no instructions from his client and therefore the appellant should be informed directly by the Court. On 9-1-1968 when the appeal was taken up for hearing the aforesaid notice was taken to be sufficient notice to the appellant of the date of hearing and the appeal was dismissed in default.

3. In these fluctuating vicissitudes it is little wonder that the appellant could not keep pace with the progress of the appeal and remained ignorant of the date fixed for its hearing. It is noteworthy that so long as the appeal remained pending in the High Court the appellant prosecuted the same energetically. He got the records inspected, made an application for translation and printing and deposited the Editors fee in time and on preparation of the estimate the requisite amount was also remitted by him by telegraphic Money Order and it was thus deposited in time. Thereafter the appellant remained completely ignorant of further proceedings in the appeal and he was throughout under the bona fide impression that it was pending in the High Court and that eventually when it became ripe for hearing he would receive information from his counsel. In the meantime, however, it so transpired that without any information to the appellant and without occasion to cause any misgiving to him in this regard the appeal ceased to be pending in the High Court and was received in the transferee Court. On 6-5-1970 the appellant met his counsel in the High Court and was told by them that according to the new Rules hie appeal was likely to be transferred to Meerut. Judicial notice can be taken of this fact that at one stage the appeals of certain valuation were required to be transferred from the High Court to the District Courts and it was seriously believed for some time that probably the appeals would be transferred for hearing to the Courts situate in the respective Districts. Later, however, the hearing of all such appeals was entrusted to an Additional District Judge sitting at Allahabad and in that process the instant appeal was also transferred to the file of the Ist Additional District Judge, Allahabad in whose Court the appeal was dismissed in default.

4. An application supported by an elaborate affidavit was filed by the appellant in May 1970 before the transferee Court along with an application under S.5, limitation Act praying for condonation of the delay in presenting the application and for restoring the appeal to its original number and disposing it of on merits. This application was rejected by the IIIrd Additional District Judge and it is this order which has been impugned by the appellant in this appeal.

5. It is remarka

Click Here to Read the rest of this document