JAINUDDIN Vs. BADIADKA CO OP STORES LTD

JUDGEMENT

(1.) IA 1368 and IA 1369 of 1982 were filed under O.41 R.19 of the CPC before the Additional District Court, Tellicherry to restore AS. Nos. 334 and 333 of 1979. The petitions were dismissed by the District Judge.

(2.) The contention of the respondents is that as the appeals were disposed of on merits, the petitions for restoration of the appeals are not maintainable and the remedy of the appellants lies elsewhere. Though the District Judge found that the petitions are maintainable he held that it cannot be allowed in view of the paucity of sufficient grounds.

(3.) O.41 R.17(1) CPC provides that where on the day fixed, or any other day to which the hearing is adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal will be dismissed. Explanation states that nothing in the sub-rule shall be construed as empowering the court to dismiss the appeal on merits. The question to be considered is whether an appeal disposed on merits without hearing the appellant's advocate can be restored for rehearing. O.41 R.19(1) CPC provides that where an appeal is dismissed under R.17 the appellant may apply to the appellate Court for re-admission of the appeal; and, where it is proved that be was prevented by any sufficient cause from appearing when the appeal was called on for hearing the Court shall readmit the appeal on such terms as to costs or otherwise as it thinks fit. In Saiammal v. Mannagatti ( 1978 (2) MLJ 277 ) it is held as follows: