The need to decide cases on their merits, absence of notice to the appellant, and principles of natural justice influenced the Court's decision in allowing the delay condonation and restoration applications.

Sudhanshu Dhulia, J.—

(Oral) : This is an appeal of the erstwhile U.P. State Electricity Board against one M/s Cheema Paper Mill private limited. The appellants was the defendants in the court below where the suit was filed challenging the legality of electricity bill given to the plaintiff/respondent was under challenge. The suit was decreed by the trial court on 24.12.1998 in favour of the plaintiff/re#31;spondent. Aggrieved, the defendants/appellants has filed first appeal being First Appeal No. 260 of 1999 before the Allahabad High Court. Consequently, appeal was admitted by the Allahabad High Court on 23.3.1999 and notice was issued to the plaintiff-respondent. Since the matter pertains to the territory, which is now within the territorial jurisdiction of Uttarakhand, which was created under an act by parliament known as U.P. Reorganization Act, 2000, it stood transferred to this Court under Section 35 of the Act. On the records being transferred to this Court, it shows that on 3.4.2002, the appeal had been dismissed for want of prosecution. The said order reads as undergone appears for appellants at the revision of list. Hence the appeal is dismissed for want of prosecution.

Interim order, if any, is vacated."

2. There is nothing on record to show that after the transfer of the present matter to this Court, any further notices were issued to the parties by this Court.

3. Now after the delay of almost 10 years i.e. after 3,374 days, a restoration application has been filed by the defendants/appellants. This application for recalling the order dated 3.4.2002 is being treated as an application under Section 151 CPC read with Order XLI Rule 19 CPC.

4. Heard leaned counsel for the parties on the delay condonation application.

5. Reasons assigned in the affidavit filed along with the delay condonation application are that the applicant had no notice of the matter being listed in this Court on 3.4.2002 (when it was dismissed for non prosecution).

6. Mr. M.C.Kandpal, Senior Advocate appearing for the plaintiff-respondent has vehemently urged that this application being highly belated must be rejected at the very threshold. More, particularly he states that there are no plausible reasons assigned in the affidavit for condoning this inordinate delay.

7. Having heard the two counsels, this Court is of the considered view that inspite of the inordinate delay the application must be allowed and the delay must be condoned. The reasons are as follows:-

As far as possible, all cases before the Courts must be decided on its merits. Admittedly, the present case was dismissed for want of prosecution without giving any notice to the appellant about the matter to be taken up by the Court under Order XLI Rule 17 of CPC. Order XLI Rule 17 of CPC states as under:

"17. Dismissal of appeal for appellants default.- (1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed."

8. Learned senior counsel for the applicants/appellants has submitted that on 3.4.2002 there was no "day fixed" in the matter, as there is no order on record to suggest that the Court had fixed the matter for 3.4.2002. Therefore, definitely when the matter was listed before this Court, it cannot be said to be a "day fixed" or a date fixed matter. Moreover, it is also very clear that appellants had no knowledge or notice about the fact that the matter is to be listed before this Court on 3.4.2002. Therefore strictly speaking when the matter was dismissed on 3.4.2002 by a learned Single Judge of this Court it cannot be treated to have been dismissed under Order XLI Rule 17 CPC.

9. Learned senior counsel for the applicants/appellants Mr. B. D. Upadhyay, in support of condonation of delay in filing the restoration application, has cited two judgments of Allahabad High Court;

(i) Bhatwati Prasad and another Vs. Ram Roop Tewari and Others, A

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