GOURA CHARAN DAS Vs. BHAGIRATHI SRICHANDAN

JUDGEMENT

(1.) This appeal is by one of the appellants, before the lower appellate court, whose application under Order 41, Rule19, Code of Civil Procedure, 1908 (in short 'the Code') to restore Title Appeal No. 43 / 97 of 1982 /1981 was dismissed by the learned Second Additional District Judge, Puri.

(2.) The background facts are that the appeal was posted to 17-7-1985 when the lawyer for the appellants filed a petition for adjournment on the ground that a petition for transfer of the case from the court of the learned Second Additional District Judge, Puri was pending. The petition was rejected and the appeal was dismissed as the Advocate did not argue the matter. A petition for restoration of the appeal was filed and the same was rejected on the ground that when the matter was taken up, the lawyer for the appellant did not address the Court and it was sufficient for the Court to pass an order of dismissal and it does not necessarily mean that the appeal was dismissed for default of appearance. It was held that in such circumstances, it is an order dismissing the appeal for default of proof and as such the order of dismissal is a decree; and hence no application for restoration lay. In these premises, the learned appellate Judge held that since the Advocate for the appellant was present and he expressed his unwillingness to argue the appeal, the dismissal was not one under Order 41, Rule 19 of the Code and the application for restoration was not maintainable. He also found that the reason that the appellant could not reach Puri due to his inability to catch the train was not a sufficient cause for non-appearance because he could have availed any other modes of transport to reach Puri and to engage another lawyer, if the lawyer who was already appearing was not willing to argue his appeal.

(3.) Pursuant to notice the respondents have entered appearance through counsel, but when the matter was taken up for hearing none appeared to represent them.