PARI BAI Vs. BHAVI CHAND

JUDGEMENT

(1.) The petitioner has filed this revision petition against the order of the Senior Subordinate Judge, Gurgaon (with enhanced appellate powers), dated 1st May, 1979, whereby his application for restoration of the appeal has been dismissed.

(2.) The petitioner, Smt. Pari Bai, moved an application for readmission of her appeal, which was dismissed for her non-appearance and her counsel on 5th November, 1977. It is alleged that her counsel was present on 5th November, 1977 and the appeal was fixed for the service of the respondent but the Ahlmad had not issued notice of the appeal for the said date and, therefore, it was adjourned to 17th December, 1977, but as the appeal was not found listed in the cause list for 17th December, 1977, on enquiry made it was revealed that the appeal was dismissed for non-appearance on 5th November, 1977. Consequently, an application for restoration and readmission of the appeal was filed on that very day, i.e. 17th December, 1977. This application was contested on behalf of the respondent and on the pleadings of the parties the trial Court framed the following issues :-

(3.) After hearing the learned counsel for the parties, I am of the view that the learned Senior Subordinate Judge has taken unnecessary pains in dismissing the application. His whole approach on the question of restoration of appeal dismissed at the very initial stage, seems to be wholly wrong and illegal. Order 41 Rule 19 of the Code of Civil Procedure, provides, that :-