HARICHAND RAJPUT Vs. BINIAL CHRISTIAN @ BENZAMIN

JUDGEMENT

(1.) This appeal is directed against the order dated 4-7-1977 passed by the learned Assistant District Judge, Dibrugarh in Misc. Case No. 1 of 1977 arising out of Title Appeal No. 19 of 1976.

(2.) I have heard Mr. D.N. Baruah, learned Counsel for the appellant. Nobody appears to represent the respondent. The sole grievance of the appellant is that he preferred an appeal in the Court of learned Assistant District Judge, Dibrugarh being Title Appeal No. 19/76 against the judgment and decree of learned Munsiffs Dibrugarh in Title Suit No. 188/72 which was dismissed for default for absence of his counsel and subsequently a petition for condonation of delay in filing restoration petition of the appeal was also rejected. The aforesaid appeal of the appellant was posted for hearing on 17-11-1976, but as the counsel for the appellant was found absent the appeal was dismissed for default. Thereafter, the appellant preferred a petition for restoration of the appeal but as the petition was barred by about 25 days, a condonation petition was filed for condonation of delay in filing the restoration petition. The appeal was dismissed on 17-11-1976 and the petition for restoration along with the condonation petition was filed on 10-1-1977. The case of the appellant was that he was ill from 13-11-1976 to 6-1-1977 and as such, he could not take steps in the appeal nor it was within his knowledge that his lawyer would not be available in the Court on the date of hearing of the appeal. The appellant also filed medical certificate in support of his illness. The appellant also examined himself and one witness in support of the condonation petition. The learned Appellate Court was, however, not convinced. This was not the original suit where the presence of party is needed. When the party litigant engaged counsel to represent him in Appellate Court it is not expected that the litigant must be present in Court at the time of hearing of the appeal. In this case the appellant engaged his counsel to represent him in the appeal. Therefore, it is not necessary that the appellant should show cause for non-appearance in Court when the appeal was called on for hearing. It is stated by the appellant that his counsel was away from station due to his personal engagement and he did not know that on 17-11-1976 his counsel would be absent when the case was called on for hearing. It is natural that when an appeal is dismissed for default, the litigant may not get information within stipulated time for preferring petition or to move the higher Court in respect of which condonation petition is generally moved. In the present case the condonation petition was moved and the Appellate Court while disposing the condonation petition along with the petition for restoration of the appeal only considered the illness of the appellant which was not relevant to be considered while the appellant engaged a counsel to represent him. In Collector, Land Acquisition, Anantnag & anr. Vs. Mst. Katiji & ors., AIR 1987 SC 1353 it was held that Sec. 5 of the Limitation Act of 1963 conferred the power to condone delay in order to enable the Courts to do substantial justice to parties by disposing the matter on merit. A liberal approach was adopted on principle as it was realised by Court that:-

(3.) In the present case there was no obligation on the part of the appellant to appear in Court while he engaged a counsel to represent him. The fault of counsel for non-appearance on the date of hearing certainly could not penalise the appellant who had no obligation to appear in Court at the time of hearing of the appeal. On perusal of the impugned order it appears that the learned Court below has dealt in the case in a manner as is done in case of an original suit. Considering the decision of the Supreme Court as aforesaid and several decisions rendered by this Court, I am of opinion that the impugned order cannot stand and it must be set aside being passed on some technical ground not warranted to be considered. Therefore, the impugned judgment dated 4-7-1977 is set aside and the learned Appellate Court is directed to take up the petition for re-admission of the appeal and also to hear the appeal on merit. Since this appeal is a long pending one, I direct that the learned first Appellate Court shall dispose of this appeal as expeditiously as possible preferably within 2 months from the date of receipt of the record. As the respondent has not entered appearance, the learned Appellate Court on receipt of the record shall issue notice on the appellants as well as the respondents to appear in Court well ahead of the date of hearing of the appeal. In the result the appeal is allowed with the aforesaid direction. No cost. Appeal allowed.