SYED TAKHLEEKH HYDER ZAIDI Vs. NAZIRUDDIN

JUDGEMENT

(1.) We have heard Mr.J.J. Munir, learned counsel for the applicants.

(2.) This application under Art. 227 of the Constitution has been filed against an order dated 25th September, 2002 whereby the Appellate Court declined to re-hear the appeal on the application made by the applicants under Order 41, Rule 21, who were the plaintiffs in the original suit, which was decreed on merit and subsequently the defendant preferred appeal which was allowed ex-parte. The Appellate Court went into the question of sufficient cause for restoration and held that no sufficient explanation is made out for restoration of the appeal on merit. We are of the view that such an order declining to re-hear the appeal is appealable under Order 43, Rule l(t) of the Code of Civil Procedure. The [provisions contained in Order 41, Rule 21 and also Order 43, Rule l(t) of the Civil Procedure Code are set-out hereunder : Order 51. Rule 21 : Re-hearing on application of respondent against whom ex parte decree made. Where an appeal is heard ex parte and judgment is pronounced against the respondent, he may apply to the Appellate Court to re-hear the appeal, and, if he satisfied the Court that the notice was not duly served or that he was prevented by sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to impose upon him.

(3.) Order 43. Rule 1 : Appeal from orders. An appeal shall lie from the following orders under the provisions of S. 104, namely : (a) to (s)........................ (t) an order of refusal under Rule 19 of Order XLI to re-admit, or under Rule 21 of Order XLI to re-hear, an appeal;