HIGH COURT OF JUDICATURE FOR RAJASTHAN

BENCH AT JAIPUR

S.B. Civil Restoration Application No. 498/2014

in

S.B. Civil First Appeal No.80/2006

Mst Rabia widow of Daud Kaji And Ors

----Petitioners

Versus

Tufel Ahmed S/o Burhanudin And Ors

----Respondents

For Petitioner(s)

:

Mr. Amit Jindal

Mr. Prashant Sharma

For Respondent(s)

:

Mr. Akhil Simlote

HON'BLE MR. JUSTICE SUDESH BANSAL

Order

29/07/2022

It has been informed that the first appeal was dismissed due

to non-compliance of the peremptory order dated 27.02.2012.

The first appeal has already been admitted and interim stay

was also granted. However, due to not filing the required PF and

notices for some unserved respondents, same has been dismissed.

Since the peremptory order is granted and not informed to

appellant, therefore, restoration application could not be filed

within time. A separate application for condonation of delay has

been filed.

Counsel for applicant ensure to file PF and notices and

service of notice on remaining respondents in the first appeal.

The contesting party to the restoration application has been

served and oppose the restoration. However, considering the fact

that first appeal is statutory right. The Supreme Court in case of

(2 of 2)

[CRES-498/2014]

Mysore Urban Development Authority Vs. S.S. Sarvesh

[2019 (5) SCC 144] observed as under:-

"19. In our view, the courts below should have

seen that the first appeal is a valuable right of the

appellant and, therefore, the appellant Authority was

entitled for an opportunity to prosecute their appeal on

merits. If the appellant's advocate did not appear may

be for myriad reasons, the Court could have imposed

some costs on them for restoration of their appeal to

compensate the respondent (plaintiff) instead of

depriving them of their valuable right to prosecute the

appeal on merits. This is what Vivian Bose, J. has

reminded to the courts while dealing with the cases of

this nature in Sangram Singh Vs. Election Tribunal

[AIR 1955 SC 425] to do substantial justice to both

the parties to the lis. Indeed, dismissal of the appeal in

default and dismissal of the appeal on merits makes a

difference. The former dismissal is behind the back of

the litigant and latter dismissal is after hearing the

litigant. The latter is always preferred then the

former."

Keeping in mind the aforementioned principle of law and

considering the cause of delay, the same is condoned. Restoration

application is allowed subject to condition that appellant shall pay

Rs.10,000/- to contesting respondents within a period of two

weeks from today.

After filing the receipt of cost amount, in the Registry, the

first appeal shall be restored on its original number.

With aforesaid observations, restoration application stands

disposed of.

(SUDESH BANSAL),J

NITIN /15