KESHO RAM Vs. HEM RAJ

JUDGEMENT

(1.) The facts of the appeal are as under :

(2.) Civil Revision No. 22 of 1975 arising out of a civil suit was allowed on 8th June, 1976 by the High Court. Review Application No. 5 of 1976 was filed for re-calling the order dated 8th June, 1976. This application was allowed exparte on 8th September, 1987 as the counsel for the appellant, Mr. K.D. Raina did not appear to defend the case. As a result of the order dated 8th September. 1987, the order dated 8th June, 1976 was re-called, and the revision petition was dismissed thereby upholding the order of the trial court that the suit had abated. The appellant herein thereafter filed CMP No. 266 of 1987 for setting aside the ex parte order dated 8th September, 1987. In these proceedings, it was pleaded that Mr. K.D. Raina, Advocate had failed to appear in Court as he was not in regular practice and his absence was not wilful. An affidavit of Mr. Raina was also attached with the application. The learned Judge did not accept the plea and affidavit of Mr. Raina and dismissed CMP No. 266 of 1987 on 11th November, 1988 leading to this Letters Patent Appeal against the aforementioned order. When this matter came up before the Division Bench, a difference of opinion arose between the two Judges, with one accepting Mr. Raina's affidavit and the other rejecting the same. It was in this situation that the matter was referred to a third Judge on the following points :

(3.) The third Hon'ble Judge held that the non-appearance of Mr. Raina was not wilful or intentional as he had virtually given up regular practice on account of ill-health and as such there was no justification in disbelieving his affidavit. With respect to point Nos. 2 and 3, however, the learned Judge held that Clause 12 of the Letters Patent of the High Court of Judicature for Jammu and Kashmir did not envisage an appeal to a Division Bench in matters arising out of revisional proceedings and that the application under. Order 47, Rule 7 of the CPC for re-call was not maintainable. The questions having been decided thus, the appeal was dismissed leading to the present proceedings by way of special leave.