MAULA BUX Vs. SOHAN LAL

JUDGEMENT

(1.) THE brief facts giving rise to this application dated 8-8-1990 filed by the applicant Salim Bux under Order 41 Rule 19 and Section 151 of the Code of Civil Procedure, are as under:-

(2.) SHRI Maula Bux (the original defendant-appellant) had been in possession of the land in dispute. The plaintiff- respondent filed a suit in or around the year 1966 for possession of the land in dispute on the ground that he had purchased it from the Municipal Board, Jhalawar under a registered sale-deed and was entitled to take possession thereof from the defendant- appellant. The suit was contested by the defendant-appellant. After trial, the learned trial court dismissed the suit. The appeal filed by the plaintiff-respondent was heard by the learned Civil Judge, Jhalawar, who allowed the appeal and decreed the suit for possession. Feeling aggrieved, the defendant-original appellant filed second appeal in this court which was registered as S. B. Civil Second Appeal No. 43/78 and was admitted on 17-2-1978. Along with the memorandum of appeal, an application for stay of the execution of the decree passed against the defendant-original appellant was also moved and the execution of the decree for possession was stayed vide order dated 5. 1. 1979 on the defendant's depositing certain amount by way of arrears of mean-profits and future mean-profits and future mean profits. The defendant-original appellant having died and an application having been moved, his sons Salim Bux (the present applicant) and Bashir Mohammad besides his daughters Mst. Chamma, Mst. Wahidan and Mst. Kalsum were brought on record as his legal representatives vide order dated 28. 11. 1979 passed by this court.

(3.) THE affidavit of Shri Ahmed Bux, Advocate supports the case of the applicant that Shri Ahmed Bux, Advocate could not leave Kota during the first three weeks of July, 1990. THEre is, however, no evidence, whatsoever, to explain as to why the other Advocates of the appellants namely Sarva Shri Ravi Kasliwal and M. Rafiq besides the applicant himself who was present in the court premises on 9-7-90 did not attend the court on that day. Although, in the application it has been stated that the electronic indicator did not correctly indicate about the case having reached, no evidence has been produced by the applicant in this regard also. On the contrary, the evidence in the form of affidavit of the respondent has denied this fact. In the application even the name of the clerk who had been watching the indicator has not been mentioned and no explanation is coining forward either in the application or in the evidence as to why the applicant who had come all the way to Jaipur in connection with the above said appeal did not attend the court but remained watching near the electronic indicator through-out the day. THEre is thus no explanation not only about the absence of the above said two Advocates but also of the applicant who was present in the court premises in Jaipur on the relevant dale. Rule 19 of Order 41 of the Code of Civil Procedure empowers the court to re-admit an appeal dismissed in default only when it is proved by the appellant that he was prevented by any sufficient cause from appearing when the appeal was called for hearing and the appeal thus cannot be restored as a matter of course. In these circumstances, I have no hesitation in deciding the issue against the applicant and in favour of the respondent.