AA ENTERPRISES Vs. J.S. SEKHON

JUDGEMENT

(1.) SHORN of unnecessary details, the facts of the case are that an arbitral award was passed by the sole arbitrator on 1.1.1996 awarding a claim of Rs. 7,43,355.20 P. to the respondent. It was made rule of the Court on 21.11.2001. Aggrieved against the said order, the present appellant filed an appeal before the First Appellate Court, in which the counsel appearing on behalf of the appellant pleaded no instructions on behalf of the appellant, therefore, the First Appellate Court, dismissed the objection in default for non-prosecution vide order dated 12.2.2004. On coming to know about this fact, the present appellant filed an application under Order 41 Rule 19 of CPC for seeking restoration of the appeal having been dismissed in default on 12.2.2004. The learned First Appellate Court vide its order dated 26.3.2007 has dismissed the said application. Counsel for the appellant has vehemently contended that the appellant had engaged his counsel and paid him fee but because of his pleading no instructions before the Court below, they remained unrepresented, as a result of which the case was dismissed in default for non-prosecution. It is further contended that in a case where a counsel pleads no instructions, the Court should issue actual date notice to the party concerned in spite of immediately dismissing the appeal.

(2.) LEARNED Counsel for the appellant has relied upon the decision of the Supreme Court in case of "Mailkiat Singh and another v. Joginder Singh and others" 1998(2) Civil Court Cases(SC) 83 and decision of this Court in case of "Usha Rani v. Prem Singh" 2005(2) Civil Court Cases(P&H) 492, "Jangir Singh v. M/s Prem Motors" 2000 (3) Civil Court Cases(P&H) 491, "Surinder Kumar v. Ram Nath and another" 2000 (2) Civil Court Cases(P&H) 1, "Baljit Singh v. Maya Ram and others" 2006 (4) RCR 415.

(3.) BESIDES , the learned counsel for the appellant has also brought to the notice of this Court that at the time of notice of motion, execution of the award was stayed provided the appellant deposit the entire principal amount with the Trial Court. It was also ordered that the same shall be released to the respondent in whose favour award has been passed. It is submitted that pursuant to order dated 20.4.2007, principal amount has already been deposited in the Trial Court.