AZIZ BANO Vs. MALKA ZAMANI BEGUM

JUDGEMENT

(1.) D .B. Civil First Appeal No. 47/80 was dismissed for want of prosecution by the following order dated July 28, 1982: 28 -7 -1982 No one appears for the appellant nor any application for substituted service has been filed. The appeal is, therefore, dismissed for want of prosecution.

(2.) THE appellants have filed the restoration application under Order 41, Rule 19 read with Section 151 CPC on August 21, 1982. It has thus been prayed that the exparte order dated July 28, 1982 about the dismissal of the appeal may be set aside and the appeal be restored to its original number. Shri V.V. Harit Advocate filed his own affidavit in support of the application.

(3.) MR . Lodha appearing on behalf of the respondents has submitted that the Division Bench has no jurisdiction to hear the present restoration application. It is contended that the present restoration arises out of regular Civil First Appeal. Under Rule 55 of the Rajasthan High Court Rules, regular first appeals require to be heard by Hon'ble Judge sitting singly. It has been further submitted that this application has been filed under Order 41, Rule 19, CPC. Under Order 19, CPC if the Court feels that there was sufficient reason then the Court can re -admit the appeal. It is contended that the re -admit of the appeal can be made by the Bench who is empowered to hear the First Appeal which in the instant case is Hon'ble Single Judge. It is contended that the hearing of the restoration application by the Division Bench would further prejudice the rights of the parties because the impugned order is appealable under Order 43, Rule (t) CPC, and Section 18 of the Rajasthan High Court Ordinance, and as such the restoration application should not be heard by Hon'ble Division Bench. Mr. Lodha in the alternative also contended that the appeal has not been dismissed for non -appearance of the appellants but for want of prosecution. No process fee and notices were filed as required under Rule 165 of the Rajasthan High Court Rules within time nor steps were taken for filing the application for substituted service and as such the Court had dismissed the appeal for want of prosecution under Rule 166 of the High Court Rules. Since the appeal has been dismissed under Rule 166 the provisions of CPC are not applicable and the present appeal cannot be restored under 41, Rule 19 CPC. It has also been submitted that in the application and the affidavit filed by the appellants, the only ground mentioned is regarding the non -appearance of the counsel in the Court on July 28, 1982 but no reasons have been assigned as to how and why steps were not taken earlier. Thus, in fact, no sufficient cause has been shown in the application or in the affidavit. The appellants were only interested in delaying the matter after obtaining stay order and no steps were taken for getting their brother and sister served intentionally.