SHER SINGH Vs. HAR DAYAL SINGH

JUDGEMENT

(1.) The brief facts of the case are that second appeal No. 188 of 1969-70/Budaun filed by Sri Sher Singh appellant against Hardayal Singh and others respondent was dismissed for default on Dec. 17, 1979 on which date none was present for the appellant but Sri Ratan Singh, Advocate the learned counsel for the respondent was present on that date. On June 23, 1980 the learned counsel for the appellant applied for the restoration of the appeal alleging that he bad no notice of the date of hearing and as such he could not appear in the case. On June 16, 1980 this fact came to his notice. Then he moved restoration application. Prayer for condonation of delay was also made. On Nov. 25, 1980 without notice to the learned counsel for respondent, appeal was restored to its original number, after condoning the delay. On Jan. 16, 1981 learned counsel for the respondent Sri Ratan Singh, Advocate applied that the order dated Nov. 25, 1980 should be set aside as it was passed without hearing the respondent. No opportunity was given to the respondent to file objection against restoration application though restoration application itself was time barred. This application dated Jan. 16, 1981 is now fixed before me for hearing.

(2.) The learned counsel for the applicant respondent argued that the appeal could not have been restored without heating the respondents who were present at the time of the dismissal for default in the absence of the appellant. According to him this order was against the provisions of C.P.C. and against the principle of natural justice. According to him order passed without hearing the respondent was nullity. The learned counsel for the O.P. appellant argued that the order posed by the court on Nov. 25, 1980 was the correct order. According to him while there was specific provision under order IX rule 9 (2) C.P.C. for notice to the O.P. There was no such provision under order 41 rule 19 C.P.C. and as such it will be presumed that the intention of the legislature was that the appeal can be restored to its original number without notice to the respondents even if they were present in court when the appeal was dismissed for default. According to him the order passed by the court was in accordance with the provisions provided in Civil Procedure Code and as such no question of breach of principle of natural justice arises. The learned counsel for the respondent relied on Vol. 17 (1912) Indian Cases 202, A.I.R. 1963 S.C. 1933, A.I.R. 1965 S.C. 1144 and A.1.R. 1971 S.C. 40. The learned counsel for the O.P. appellant further argued that there was no provision of law under which this court can set aside the order dated Nov. 25, 1980.

(3.) The main question to be decided in the case is whether an appeal dismissed for default can be restored without notice to the respondent though the respondent was present when it was dismissed for default.