PREM SHANKER AWASTHI Vs. PRAYAG DAS AND OTHERS

JUDGEMENT

(1.) This appeal is directed against an order passed by an appellate court dismissing the application of the appellant purporting to be under Order 41, Rule 19 of the Code of Civil Procedure.

(2.) It appears that a Misc. Appeal No. 224 of 1984 preferred by the appellant was posted for hearing before the learned XII Addl. District Judge, Kanpur on 25.8.84. It is also apparent that this appeal was dismissed in default at 3.15. P.M. on that date. On the next date, an application containing the prayer that the order dismissing the appeal in default may be recalled was made on behalf of the appellant.

(3.) It was averred in the affidavit filed in support of that application that between 1.45 and 3.15 P.M. it was raining very heavily on 25.8.84. This fact has been noted by the learned Judge in his order. Curiously enough, the learned Judge has not dealt with this aspect of the matter at all. On the other hand, he has taken great pains to point out that the appeal was called out in the earlier part of the day, the pairokar appeared and prayed that he may be permitted to bring counsel. The case was again called out, the pairokar repeated his performance and lastly the Court passed an order that the case will be taken up for hearing immediately after lunch.