RAMCHANDRA Vs. FATEH SINGH

JUDGEMENT

(1.) THIS Misc. Appeal has been filed under Order 43 Rule 1 of CPC against the order dated 3. 03. 2001 passed by Addl. District Judge, Kishangarh whereby he dismissed the application of the defendant appellant for condonation of delay in filing the application for restoration of the appeal and consequently dismissed the application for restoration of appeal.

(2.) THE plaintiff respondent had filed a suit in the lower court which was decreed, against which, an appeal was preferred by defendant-appellants in the court of District Judge, Ajmer. THE appellants engaged Kapoor Chand Jain Advocate on their behalf. THE aforesaid appeal was transferred from court of District Judge, Ajmer to the court of Addl. District Judge No. 2, Ajmer and again to the court of Civil Judge, Kishangarh. None was present on behalf of defendant appellants before the Appellate Court, therefore the appeal was dismissed in default. However an application for restoration of the appeal was filed along with an application for condonation of delay in filing the application. THE appellant explained the delay in filing the application and submitted that he engaged Advocate to file an appeal at Ajmer. THE appeal was transferred to the Court of Addl. District Judge No. 2, and appeal was attended by his counsel but appeal was again transferred to the court of Civil Judge, Kishangarh, where no one was present on 18. 1. 1993 and appeal was dismissed in default. THE defendant appellants further submitted that by were told by their counsel, they need not to come on each and every date. THEy will be called as and when their presence would be required. However, after transfer of the appeal at Kishangarh, they were given their file by their counsel to engage another advocate at Kishangarh. THE appellants engaged another counsel namely Mr. V. S. Bafna on 17th August 1993 and moved an application for inspection of the record and thereafter they came to know that appeal had already been dismissed in default on 18. 1. 93. However, the court below vide impugned order dismissed both the applications.

(3.) THE Misc. Appeal is allowed and the impugned judgment dated 3. 03. 2001 passed by the Addl. District and Sessions Judge, Kishangarh in Civil Misc. Application No. 11/93 (5/2000) is set aside. THE application for condonation of delay as well as the application for restoration of appeal filed by appellants are allowed. Appeal No. 64/89 is restored to its original number. THE first Appellant Court is directed to decide the appeal of the appellants on merits after hearing both the parties. THE court directed the appellants vide order dated 16. 7. 2001, to deposit a sum of Rs. 2, 000/- towards costs for the respondents. THE appellants deposited the amount of costs on 24. 7. 2001. THE plaintiff respondents will be entitle to receive the said amount of costs. .