PREM NARAIN Vs. RAM SINGH AND ORS.

JUDGEMENT

(1.) This is an appeal against an order dismissing an application. Under order 41 Rule. 10 C.P.C. Before admission of the appeal by this Court notices were sent through registered A.D. post to the respondents. According to the office report, neither the undelivered envelopes nor the acknowledgements have been received back. In the circumstances service on the respondent 1 to 5 is deemed to be sufficient.

(2.) After going through the order of the Court below and necessary documents filed along with the stay application find that most of the appellants were residents of places far off from Agra, Where the appeal was pending In this situation the clerk of the counsel appearing for the appellants was doing pairvi of the appeal on their behalf. The appeal was fixed for hearing on 2-1-1987. On that date when the appeal was called out the said clerk did not respond Since the appellants were also absent the appeal was dismissed at about 11.20 A.M. An application to restore the appeal was moved on 5-1-1987 but it has been dismissed mainly on the ground that the application did not disclose any sufficient reason for the absence of the appellants on the date fixed.

(3.) It is true that normally the party should be present when the appeal is listed for hearing but in a case like this where most of the appellants were living at far off places it is not absolutely necessary that the parties or any of them should be present in the Court. The parties can make some arrangement for the presence of some one on their behalf to respond then the case is called out. In the present case it is not denied that the clerk of the appellants counsel had been assigned for doing pairvi on behalf of the appellants. The appellants would, therefore, be justified in entertaining a feeling that the clerk will do the needful on their behalf. The clerk, in his affidavit, has clearly stated that he was doing pairvi on behalf of the appellants, because the appellants were residing at far off places. He further stated that as he had got busy in looking after some other work due to which he could not respond when the appeal was called out ; he came to know that the appeal had been called out at 11.20. A.M. and had been dismissed in default. He has also explained that 2-1-1987 being miscellaneous day he could not wove the necessary application for restoration of the appeal the same day. The court below has not taken into consideration all these facts and merely because the reason for appellants personal absence was not shown in the application, the same was rejected.