The main legal point established is that entitlement to notice and re-hearing after restoration of a suit or appeal depends on the specific facts and circumstances of each case, and there is no general right to notice and re-hearing in all cases of ex parte proceedings.

Ritu Raj Awasthi, J.

Heard learned counsel for appellants and perused the records.

2. No one has put in appearance on behalf of respondents in spite of sufficient service.

3. The First Appeal From Order arises against the judgment and award dated 19.7.1991 passed in Civil Misc.Case No. 46 of 1990 (Chauti & others Vs. Ganga Ram & others).

4. Learned counsel for appellants submits that a suit for possession was filed by the present respondents which was dismissed vide judgment and order dated 31.1.1982. The first appeal against the said judgment was filed by the respondents which was registered as Civil Appeal No. 427 of 1982 (Lal Bihari & others Vs. Somai & others). The present appellants being? respondents in the said first appeal had put in appearance before the first appellate court.

5. It is submitted that the said appeal was dismissed in default on 30.5.1988. Thereafter an application was moved under Order 41, Rule 19 C.P.C. which was allowed vide order dated 24.9.1988.

6. It is further submitted that after the appeal was re-admitted the notice was required to be issued to the present appellants-respondents, however no such notice was issued or served. Learned Court below, however had proceeded to decide the said appeal and vide order dated 17.3.1990, the appeal was allowed ex parte.

7. The present appellants after coming to know about the said fact had moved an application under Order 41, Rule 21 C.P.C. for recall of the order dated 17.3.1990 and re-hearing of the appeal. The learned Court below, however in a most illegal manner had rejected the said application vide impugned order dated 19.7.1991. The present First Appeal From Order has been filed against the said order dated 19.7.1991.

8. It is also submitted that the Division Bench of this Court in the case of Long Life Carpet Industries Vs. Smt. Kesar Jahan, LCD 1988 (6) 604 has held that in case the suit has been dismissed in absence of both the parties, after restoration of suit the defendants have a right, and entitled to notice of hearing of the suit.

9. It is further submitted that in such matters a lenient view is required to be taken by the Court as has been held by the Apex Court in the case of Ramji Dass and others Vs. Mohan Singh, ARC 1978? 496, wherein it has been said that discretion of the Court should be exercised in favour of hearing and not to shut out the hearing.?

10. I have considered the submissions made learned counsel for? appellants and gone through the records.

11. The learned Court below while deciding the application moved under Order 41, Rule 21 C.P.C. has observed that on 19.8.1987 the appellants (present respondents)? were present along with their counsel, however no one had appeared on behalf of the respondents (present appellants), as such, the appeal is being listed for hearing ex parte. It was since then that the appeal was being listed for ex parte hearing and on 13.3.1990 it was heard ex parte.

12. It is also observed by the learned court below that it appears from the record that the appeal was restored on 1.10.1988 in pursuance of the order dated 24.9.1988. The appeal was in fact dismissed in default on 29.5.1988 and before that it was being listed for ex parte hearing.

13. The learned Court below has come to the conclusion that since the appeal was being listed for ex parte hearing, as such, notice to the present appellants (respondents before the first appellate court) was not necessary while restoring the case. The application, as such, moved under Order 41 Rule 21 C.P.C. is liable to be rejected.

14. In the case of Long Life Carpet Industries (Supra), the Court had taken the view that the defendants are entitled to get notice of hearing of suit after the suit was restored considering the fact that the defendants were duly represented in the suit and they were appearing before the Court concerned. The relevant paragraphs 3 and 4 of the judgment on reproduction read as under:

"3. The sole point for consideration in this c