KAKA RAM Vs. PRABHA SHANKAR

JUDGEMENT

(1.) This application under Q.41 R.19 Civil P.C. for the re-admission of the appeal, dismissed in default by this Court on 24-2-1981 for non-prosecution, is made on 10-3-1982 after more than a year.

(2.) It appears that a Civil Second Appeal titled Kaka Ram v. Prabha Shankar was pending in this Court for adjudication. On 13-12-1979 Mr. R.N. Bhalgotra had appeared for Mr. Baldev Singh learned counsel for the appellant. The appeal was adjourned because Mr. Baldev Singh was reported to be busy with the elections. Thereafter the case was adjourned and came up before the Deputy Registrar on 14-2-1980. It had come up before him on 14-3-1980 and 25-4-1981 (1980?). It was adjourned to 23-2-1981. On all these dates learned counsel for the appellant was not present. On 24-2-1981 Anand J., as his Lordship then was, passed the order which reads as under:-

(3.) It is in these circumstances that the present CMP is filed. The learned counsel for the respondent has taken an objection that the application is barred by limitation. Under Art. 168 of the Limitation Act period prescribed for moving an application under O.41 R.19 Civil P.C. is thirty days from the date of dismissal of the suit and Mr. Bhalgotra appearing for the respondent submits that since the application has been made after more than a year, therefore, the application is hopelessly barred. He submits that from the words "from the date of dismissal" occurring in Art.168 of the Limitation Act is from the date of actual dismissal and not from the date of knowledge of dismissal. In support of his contention he has relied on Municipal Board v. State Transport Authority, AIR 1965 SC 458, Ram Shankar v. Lalta Prasad AIR 1964 All 124, Kanai Lal Shaw v. Bhattu Shaw, AIR 1961 Cal 474 and has referred to Rr.11, 17 and 19 of O. 41 Civil P.C. in order to show the scheme of O.41 as in his opinion these Rules are in pari materia with the Rules contained in O.9 C.P.C. Rule 17 of O.41 provides that when on the date fixed or any other date to which the hearing may be adjourned, the appellant does not appear when the appeal is called for hearing, the Court may make the order that the appeal be dismissed. Sub-rule(2) of this Rule provides that if the respondent does not appear and the appellant appears the appeal shall be heard ex parte. An appeal can be dismissed under Rr.11 and 18 O.41 C.P.C. and dismissal of appeal under the aforesaid rules is to be remedied by R.19, of O.41 C.P.C. if the appellant makes an application to the appellate Court for re-admission of the appeal and it is shown that he was prevented by a sufficient cause from appearing in the Court. The authority reported in AIR 1965 SC 458 (Supra) is an authority under the Motor Vehicles Act and it lays down the broad principle and says that "date of the order in S.64-A of the Motor Vehicles Act should not be read as from the date of the knowledge of the Order." It further says that in the absence of clear indication to that effect the Court is bound to hold that the application will be barred unless made within thirty days from the date of the order by which the person is aggrieved. AIR 1964 All 124 (Supra) says that where the appeal is dismissed and the application is made under O.41 R.19 C.P.C. the application must be made within thirty days from the date of dismissal and application filed beyond the period of limitation prescribed under Art.168 L.A. will be liable to be rejected AIR 1961 Cal 474 (Supra) is an authority dealing with O.9 R.9 C.P.C. In this authority application for restoration of a suit was dismissed on the ground of limitation and the appeal was taken to the Division Bench and the Division Bench also dismissed the appeal as in the opinion of the Division Bench there was no sufficient cause for restoration of the suit because the application was filed beyond the period of limitation.