An appeal dismissed for default of appearance can be restored under Order XLI, Rule 19, if the appellant shows sufficient cause for his absence.

Gopi Nath, J.

1. THIS is an application dated 8-9-1976 for recalling of the order dated 16-4-1976. The appeal was dismissed as not pressed on that date. The order was in the following terms :- "Mr. Siddheshwari Prasad, learned counsel for the appellant, states that he has no instructions to press the appeal. It is, accordingly, dismissed as not pressed." By means of this application it is prayed that the order of dismissal be recalled and the appeal be heard on merits. The application states that the applicant did not know the date of hearing, and he could not be contacted by his counsel as the former was out, and the repeated letters sent to him could not be received by him. It is stated that since the learned counsel could not contact the client and obtain instructions from him to press the appeal, he made the statement which led to the dismissal of the appeal as not pressed. The applicant came to know of the dismissal of the appeal long after the passing of the order. It is stated that learned counsel for the applicant visited Varanasi, and the applicant then contacted him and enquired about fate of the appeal. Learned counsel asked him to come to Allahabad and ascertain the position of the case. The applicant then came to Allahabad and learnt that the appeal had been dismissed for non-prosecution. In support of the application, the applicant has filed his own affidavit and those of the junior counsel of the applicant and the clerk of the senior counsel. These affidavits clearly show that learned counsel for the applicant made repeated efforts to contact the applicant but he could not be contacted as he had gone out to Calcutta in connection with the illness of his wife, and from there to Kathmandu. Since the application was filed beyond time, an application for condonation of delay under section 5 of the Limitation Act had also been filed, which has been allowed after contest, and the allegations made in support of that application have been believed as true.

2. THE instant application for recalling of the order was strenuously opposed on behalf of the opposite parties mainly on the ground that the order of dismissal not being for default of appearance but for default of proof, it could not be recalled under Order XLI, Rule 19, of the Code of Civil Procedure. Learned counsel for the applicant, on the other hand, contended that the appeal was not disposed of on merits, and the order was one for default of prosecution of the appeal. THE appeal could, accordingly, be restored and heard on merits under Order XLI Rule 19, Code of Civil Procedure.

In Achhar Singh v. The District Judge, Dehradun, 1979 AWC 124 it was held that even if an appeal was dismissed on merits under Rule 17 of Order 41, it could be restored under Order 41, Rule 19. See also Seth Munna Lal v. Seth Jai Prakash, 1968 AWR 860: AIR 1970 All. 257 FB and M. S. Khalsa v. Chiranji Lal, 1976 AWC 23 : AIR 1976 Allahabad 290 FB. Learned counsel for the opposite party, on the other hand, contended that once the appellant appears, the appeal would not be liable to be restored under Order 41, Rule 19, C.P.C. if the same had been disposed of on merits. Two questions thus fall for determination-(i) whether the appeal was dismissed on merits by the order dated 16-4-1976 or it was dismissed for default; and (ii) whether the appellant had appeared on that date. If so, whether the Court has the power to restore the appeal under Order 41, Rule 19, C.P.C. According to the learned counsel for the applicant, since he expressed his inability to argue the appeal on merits for want of instructions from the appellant, the dismissal, could not be on merits. Learned counsel for the opposite party, on the other hand, pointed out that the authority of the counsel had not been withdrawn, and he continued to be a counsel in the case. He could accordingly press the appeal, and has in fact pressed the application for restoration in the case. In these circumstances, the appellant would b