GYANKALI Vs. COMPETENT AUTHORITY

JUDGEMENT

(1.) BY the miscellaneous appeal, order dated 22.9.1999 in MJC No. 6 of 1998, passed by IInd Additional District Judge, Hoshangabad, dismissing the appellants' application under Order 41 Rule 19 CPC has been challenged.

(2.) THE appellants preferred an appeal before the lower appellate Court -IInd Additional District Judge, Hoshangabad, against the judgment and decree dated 4.9.1981 in Civi Suit No. 22 -A/77 by Civil Judge Class -II, Seoni Malwa. That appeal after being adjourned for several dates, was dismissed for want of prosecution on 9.2.1998 by the lower appellate Court. The appellants filed an application under Order 41 Rule 19, CPC praying that the same be restored. The grounds urged in the application were that they had engaged their counsel Shri R.S. Yadav to appear for them. However Shri R.S. Yadav having been appointed as Government Advocate did not appear for them in the said appeal. The result was that the appeal was dismissed.

(3.) AFTER considering the contentions as above, it does not appear that absence of appellants was intentional and since there appears to be sufficient cause as above for non -appearance of the appellants, the application under Order 41 Rule 19, CPC filed by them, deserves to be allowed. Accordingly this appeal is allowed. The impugned order is set aside. The application filed by the appellants before the lower appellate Court under order 41 Rule 19 CPC is allowed. Civil Appeal No. 2 -A/82 pending before the Ilnd Additional District Judge, Hoshangabad is directed to be restored. The parties shall be afforded an opportunity of hearing. However, it is made clear that the appellants shall not be entitled to adjournments and they will be heard on the date that may be fixed in that regard by the lower appellate Court.