PRABHAKAR V MISHAL Vs. JUKHARAM MAHADEO BANDAL

JUDGEMENT

(1.) BY this petition, the petitioner challenges the order dated 3rd March 1997 passed by the Joint District Judge Sindhudurg in Civil Misc. Application No.32 of 1996. That application was filed by the petitioner challenging the dismissal of his appeal in default. It appears that the date on which the appeal was fixed for hearing an application was filed for adjournment of the appeal by the lawyer. However, that application was rejected and the appeal was called for final hearing. However, the appeal was dismissed in default. An application was filed for restoration of the appeal, however, the order refusing the adjournment was never challenged. The Court refused to restore the appeal holding that no satisfactory explanation has been given for the absence of the appellant on the date of hearing. The Court also found that the respondent no.1 who was the contesting party, had expired and no steps were taken to bring his legal representatives on record and therefore, the appeal had abated against the contesting respondent. The learned counsel for the petitioner urged before me that because the counsel appearing for the petitioner was also indisposed, he could not remain present. It is however, to be seen that the Court proceeded to hear the appeal only after rejecting the application for adjournment filed on behalf of the petitioner, therefore, it was necessary for the petitioner to challenge the first order refusing the adjournment. In the absence of any challenge to that effect that order remains intact and if the Court refuses to grant an adjournment and wants to hear the appeal and the appellant and the lawyer are absent, the Court has really, no option but to dismiss the same in default. It is further to be noted here that one of the reasons given by the Court was that the appeal stands already abated against the contesting respondent. In the petition, no explanation is given as to why an application for bringing the legal representatives of the respondent no.1 on record, could not have been filed. It appears that from the order of the Court that the petitioner was not diligent in prosecuting the appeal and therefore, the Court has refused to restore the appeal. It is pertinent to note here that even in this petition, neither the copy of application for adjournment filed before the appellate Court is produced on record nor is the order passed by the Court on that application. In my view, these were vital documents for considering the case of the petitioner for restoration of the appeal. In the facts and circumstances, therefore, in my opinion, I do not find either any manifest mistake apparent on the face of record nor do I find any error of jurisdiction, I also do not find that the impugned order in the petition suffer from violation of principles of natural justice. Therefore, this court would not be justified in interfering with the order in extra ordinary jurisdiction under Article 227 of the Constitution of India. The petition is, therefore, rejected.