BABULAL Vs. SHIVKANTBAI

JUDGEMENT

(1.) THE defendant - applicant has directed this appeal against the order dated 22.1.2002 passed in Civil Misc. Case No. 16/2001 whereby the learned IV ADJ, Indore, dismissed the application filed by the appellant U/o. 41 R. 19 CPC for restoration of the Civil Misc. Appeal No. 17/98 dismissed in default of appearance vide order dated 10.8.2001.

(2.) CONSIDERING the submissions of the L.C. and on perusal of the impugned order as also the copies of the papers filed alongwith this appeal it is not disputed that Civil Misc. Appeal No. 17/98 was fixed for hearing in the Court of IV ADJ, Indore. No one appeared on behalf of the appellant in the said appeal when the appeal was called on for hearing. In the result, the appeal was dismissed in default of appearance of the appellant. It is also not in dispute that on behalf of the appellant, an application for restoration of the said Misc. Appeal was filed same day. The learned ADJ, by the impugned order, dismissed the said application and refused to restore the Misc. Appeal No. 17/98 dismissed in default of appearance on the same day.

(3.) IN the result, this appeal is allowed. The order impugned of the IV ADJ Indore dated 22.1.2002 is set aside and the application filed on behalf of the appellant U/o. 41 R. 19 of the CPC before the said Court for restoration of the Misc. Appeal No. 17/98 is allowed. The order passed by First appellate Court dated 10.8.2001 is recalled and the Civil Misc. Appeal No. 17/98 is directed to be restored to its original number and further directed to dispose of the said appeal in accordance with law. Parties through their counsel are directed to appear before the first appellate Court on 25th June 2002. Looking to the pendency of the Misc. Appeal before the first appellate Court, it is directed that the Misc. Appeal be disposed of within a period of two months from the date of appearance of the parties before the said Court. No orders as to costs.