LUDA Vs. RAGHUBIR DAYAL

JUDGEMENT

(1.) THIS is an application for the revision of the order of the Additional Commissioner, Jaipur dated 26. 9. 61 whereby the appeal of the opposite party against the order of the Assistant Collector, Alwar dated 13. 9. 60 was allowed. The applicants had brought a suit for permanent injunction and the trial court had granted a temporary injunction in their favour. The appeal was fixed for hearing at Alwar on 14. 12. 60 On that day, it is alleged that the learned Additional Commissioner held court at a place different from the one which he had previously used for the purpose. Both parties were absent and the appeal was dismissed in default. Later in the day the opposite party applied for restoration of appeal which was allowed. The opposite party was directed to present copies of notices for service on the applicants. For one reason or other the notices were not served and there were number of adjournments. Eventually on 7. 8. 61 the appellate court recorded that there was an order of 14. 12. 61 whereby the appeal was to be heard ex parte against the applicants. Proceeding on this basis the learned appellate court heard the arguments of the opposite party ex parte and accepted the appeal.

(2.) THE learned counsel for the applicants has rightly urged that after the dismissal of the appeal in default it was incumbent on the court to issue notices to the applicants. He has cited I. L. R. Rajasthan 1958 page 95 wherein it has been held that if an order of the dismissal in default is set aside, the defendant is entitled as a matter of right to notice of the date which is fixed for the further hearing of the suit. By parity of reasoning the respondent in an appeal is entitled to notice of hearing if the appeal has in the first instance been dismissed because of the absence of the appellant and has been subsequently restored. Order 41, Rule 19 of the Code of Civil Procedure says that an appeal dismissed in default may be readmitted. It is reasonable that on readmission the further procedure should be same as on the initial admission of the appeal, namely, that the respondent should have notice to appear for the hearing. Rule 12 of Order 41 requires that if the appeal has been admitted a notice should be issued to the respondent. This procedure must be adhered to on the Restoration of appeal which has been dismissed in default. THE learned counsel for the opposite party has not been able to controvert this position. We therefore accent this application for revision, set aside the impugned order of learned Additional Commissioner, and remand the case to the Revenue Appellate Authority with the direction that the applicants' appeal should be heard afresh under notice to the) parties. .