DHANNA Vs. JAGGU

JUDGEMENT

(1.) THIS appeal is directed against the order dated 29.7.1999 passed by Additional District Judge, Gulabpura in Civil Misc. Case No. 10/99 whereby the learned lower appellate court dismissed the application filed by the appellants under Order 41 Rule 19 C.P.C. seeking restoration of Civil Appeal No. 65/1998, which was dismissed in default on 27.10.1998.

(2.) A suit was filed by the respondent -plaintiff Jaggu against the appellant -defendants for permanent injunction, which was decreed by the trial court vide its judgment and decree dated 13.1.1998. Against the judgment and decree dated 13.1.1998, the appellants had preferred an appeal before the District Judge, Bhilwara, which was subsequently transferred to the court of Additional District Judge, Gulabpura. The appeal was originally filed before the District Judge Bhilwara through the counsel Shri K.G. Sharma practising at Bhilwara. Subsequently it was transferred to the court of Addl. District Judge, Gulabpura and the counsel engaged by the appellants at Bhilwara could not attend the court at Gulabpura on the date fixed for hearing on 27.10.1998 and the appeal filed by the appellants, was dismissed in default. Neither the counsel for the appellants nor the appellate court at Gulabpura informed the appellants regarding transfer of the case from Bhilwara to Gulabpura. However, when the appellants contacted the counsel Shri K.G. Sharma at Bhilwara, they were informed by the counsel that the case has been transferred to Gulabpura and, therefore, the appellants should make their own arrangement to contest the appeal at Gulabpura. Prior to this, the appellants were busy in the treatment of Mst. Ladu daugther -in -law of appellant No. 1 who was admitted in the T.B. Hospital at Udaipur and as such, on 27.10.1998, both the appellants were at Udaipur in order to look after Mst. Ladu. On 7.12.1998 appellants were to Gulabpura and contacted the counsel Shri Shyamlal Trivedi and, enquired about the appeal filed by the appellants. The appellants went informed that the appeal filed by them has already been dismissed on 27.10.1998 in default. An application under Order 41 Rule 19 C.P.C. was filed by the appellants seeking restoration of the appeal. The appellant court vide order impugned dated 29.7.1999 refused to restore the appeal and dismissed the application filed by the appellants.

(3.) THE application filed by the appellants under Order 41 Rule 19 C.P.C. stating the reasons which prevented them to appear before the appellate court when' the appeal was called for hearing. The application was supported by an affidavit. The facts stated in the application and the affidavit of the appellant Dhanna, have not been controverted by the respondent. The trial court dismissed the application on the ground that the appellants have not mentioned the date when they contacted their counsel at Bhilwara and have not filed the treatment report of the daughter - in -law. Be that as it may. The facts stated in the application supported by an affidavit of the appellant Dhanna, were not controverted by the respondent by reply affidavit. The application under Order 41 Rule 19 C.P.C. was accompanied by an application under Section 5 of the Limitation Act seeking condonation of delay of about 10 -11 days in filing the application.