MAMAN RAM Vs. KULDIP AND OTHERS

JUDGEMENT

(1.) THE challenge in the present revision petition to the order passed by the learned First Appellate Court on 23.2.2005, whereby an application for restoration of the appeal was dismissed in default. The challenge is also to the order dated 12.8.2006, passed by the learned First Appellate Court, whereby an application for restoration of the earlier application was declined.

(2.) AFTER hearing learned Counsel for the parties, I am of the opinion that the order passed by the learned First Appellate Court in not restoring the appeal to its original number, suffers from patent illegality and irregularity. Though, it can be said that the Petitioner was negligent in seeking restoration of the application and also of appeal, but the facts remain that it cannot be stated that he was adopting delaying tactics to delay the decision of the appeal. On 15.9.1999, when the appeal was dismissed in default, it is the case of the Petitioner that his wife was ill and his counsel instructed the another lawyer to enquire about the status of the case. The case was fixed for summoning of the Respondents before the Court, therefore, the presence of the Petitioner was not required. The non -appearance is not due to lack of bonafide in any manner. The subsequent order passed by the learned First Appellate Court, in fact, negates the cause of justice. The Court should have permitted the parties to contest the case on merit, rather on technicalities. However, for delay in filing the application, I deem it appropriate to burden the Petitioner with costs.