DWARIKA PRASAD Vs. KAILASHNARAYAN

JUDGEMENT

(1.) ALTHOUGH respondent" are noticed but today Shri Jain, appellant's counsel, owns up his mistake. He is right in submitting that the instant defendant -appellant had another remedy open and that he can still avail notwithstanding the impugned order. He is very correct.

(2.) THE trial Court had passed an exparte decree against the defendant -appellant and his brother, Ramnarayan impleaded herein as respondent No.9. By the impugned order passed by the lower Appellate Court the suit has been restored to file and a direction is made to the trial Court to allow Ramnarayan to prove his case. However, the defendant -appellant is aggrieved because his separate appeal for restoration of the suit has been dismissed. Shri Jain is right in submitting that instead of coming to this Court he should have gone to the trial Court with the prayer in the suit now already restored, to hear him as well. He would have the right to appeal if that prayer was rejected. Till today that remedy is not availed and indeed the retrial of the suit is yet to take place.