ASHOK KUMAR Vs. MANJIT KOUR

JUDGEMENT

(1.) AFTER the dismissal of her suit for accounts by the trial court on 20th Aug.1982, the petitioner herein filed an appeal in the first appellate court below. The appeal was dismissed for default of appearance end non -prosecution by the petitioner vide the first appellate courts order dated 20.3.1985. Application for restoration of the appeal dismissed for default of appearance under Order 41 Rule 19 read with Sec. 151 of the C.P C. was filed on 11.5.1985, alleging therein that the petitioner was present in the Court on 16.3.1985 when Sh. Javid Iqbal Advocate appeared on her behalf. A request for adjournment of the case was made at 11. 30 a.m. but the Presiding Officer instead told to adjourn the case only after the counsel of the respondent appear in the court. The petitioner claims to have remained present in the Court room and was subsequently told by the reader of the court that the case had been adjourned to 26 4.1985. The accordingly informed her counsel about the next date of hearing. The case was never adjourned to 183.1985 or 2031935. On 2641985 the counsel of the petitioner was informed by Steno/Clerk of the appellate court below that the appeal stood dismissed in default and for non -prosecution on 20.3.1985. The petitioner could contact her counsel only on 9.5.1985 and after knowing about the dismissal of her appeal filed the application for restoration and its re -admission. The appellate court below after affording the parties the opportunity allowed the application holding that sufficient cause was made out which prevented the petitioner in putting her appearance on the date when the appeal stood dismissed for default and subject to payment of Rs. 100/ - as costs. The order of the appellate court below is stated to be without jurisdiction and contrary to the provisions of law.

(2.) I have heard the learned counsel for the parties and have perused the record.

(3.) MR . V.K. Gupta, the learned counsel appearing for the petitioner, has relied upon the judgment of this court reported in AIR 1986 J&K 6 wherein it was held that: