HARCHARAN Vs. BUDH PRAKASH

JUDGEMENT

(1.) INSTANT application has been moved under Order XLI, Rule 19, C.P.C. for restoration of Second Appeal No. 1238 of 2002 which was dismissed on 29th February, 2008 with the observation that no substantial question of law was involved and the second appeal was admitted. Hence, the order of admission was recalled and set aside.

(2.) IT has been alleged in the affidavit annexed with the restoration application that on the date when the impugned order regarding allowing recall application and setting aside the earlier order was passed, a substitution application was pending. During the pendency of the appeal, respondent No. 1 had died and in order to bring his heirs on record, an application for substitution was moved. In these circumstances, earlier to passing any order on recall of earlier order, it was incumbent on the Court to dispose of the substitution application of respondent No. 1 but without bringing the heirs of respondent No. 1 on record, the appeal was dismissed by the impugned order on the ground that no substantial question of law is involved and this is against the spirit of law. IT has further been alleged that in view of Order XLI, Rule 17 of the C.P.C. in case the appellant is absent then no order may be passed on merits rather the appeal must be dismissed in default. Whereas by the impugned order the appeal was decided on merits instead of dismissing the appeal in default as is provided in Order XLI Rule 17 of the C.P.C. Further urged that a finding has been recorded by this Court on 22nd February, 2008 that counsel for the appellant was not present and this finding/observation is not correct. On 20th February, 2008, the counsel for the appellant was very well present in Court and requested for two weeks' time for filing objection against the application for recall as well as counter -affidavit and rejoinder -affidavit. And on that date, Sri Manu Saxena, advocate appeared in Court and requested the Court that the case may be taken up in the revised list as Sri Ajeet Kumar, advocate is on legs in Court No. 39 and as afterwards list could not be revised. Hence, another mention was made on behalf of Sri Ajeet Kumar at the time of rising of the Court that matter may be ordered to be put up as unlisted. But the Court ordered that the case may be listed on 29th February, 2008. Certain other points has also been raised regarding perversity of the judgment of first appellate court. There appears no necessity to mention the merits of the case as has been stated in the affidavit because application has been filed for restoration of the appeal and not for review of the order.

(3.) AT the very outset, learned counsel for the applicant argued that on the date when the appeal was dismissed for want of substantial question of law after recalling of the order dated 30th January, 2004, one substitution application was pending. That respondent No. 1 had died during the pendency of the appeal and in order to bring his heirs on record application was moved for substitution. This fact has not been disputed by the learned counsel for the respondents. But learned counsel for the respondents argued that heirs of Sri Budh Prakash deceased respondent No. 1 appeared in the appeal and filed the application for recall of the order dated 30th January, 2004. That application was moved by the heirs and inspite of the fact that the substitution application was pending, the second appeal was dismissed on the ground that no substantial question of law is involved and at the time of admission on 13th April, 2004 appeal was wrongly admitted on certain substantial question of law. Under these circumstances as the application has been moved by the heirs of respondent No. 1 deceased, then this fact is meaningless that on the date when the second appeal was dismissed substitution application for substituting the heirs of respondent No.1 was pending. I am of the opinion that this fact might have been most material in the circumstances if adverse order might have been passed against the interest of the heirs but no order was passed against the interest of the heirs of respondent No. 1 rather the application moved by the heirs of deceased respondent No. 1 was allowed. Hence, I do not think that this restoration application is maintainable on the ground that substitution application of the heirs of respondent No.1 was pending on the date when the order dated 29.2.2008 was passed. Much has been argued by the learned counsel for the applicant in the light of the provisions of Order XLI, Rule 17, C.P.C. it has been provided by Order XLI, Rule 17, C.P.C.