RASHIDAN BIBI Vs. MD.HASAN

JUDGEMENT

(1.) THIS appeal has been preferred against the order dated 6.2.2006 passed by the learned Single Judge in Misc. Appeal No. 398 of 2003 , by which the appeal was dismissed and the order passed by the 4th Additional District Judge, Palamau in Misc. Case No.2 of 2002, whereby the restoration petition filed under Order 41 Rule 19 read with Section 151 of the Code of Civil Procedure had been dismissed, was confirmed.

(2.) TO highlight the controversy giving rise to this appeal, it may be essential to state that the appellant -Rashidan Bibi had filed a Partition Suit in the court of learned Munsif bearing Partition Suit No. 53 of 1992 , whereby she had sought the relief of declaration of title and confirmation of possession on a piece of land comprising an area of 0.12 acres, situated at village Haidernagar , district -Palamau on which she had also built her residential house. The suit after contest was dismissed against which the plaintiff -appellant preferred an appeal before the 4th Additional District Judge, Palamau . When the appeal was called out for hearing, the advocate appearing on behalf of the appellant failed to appear and consequently the appeal was dismissed in default. Thereafter a Misc.Case No.2 of 2002 was filed by the plaintiff -appellant before the District Judge for restoration of the appeal which had been dismissed in default. But unfortunately for the appellant, the application for restoration was dismissed on the ground that the plaintiff -appellant in the restoration petition had submitted that the ground for non appearance of the counsel for the appellant was due to sudden illness of a member of his family due to which he had left the court premises and went home. The said fact had not been stated in his petition for restoration. It was stated in the restoration petition that the lawyer was busy in another court due to which he did not appear. However, the Additional District Judge, before whom the restoration petition was filed, was pleased to hold that the appellants lawyer had failed to make out a case of sufficient cause, so as to grant the relief of restoration of the appeal.

(3.) THIS Letters Patent Appeal is directed against the aforesaid order and in support of the appeal the counsel for the appellant assailed the orders passed by the courts below , repeating the submissions which were advanced before the courts below, as referred to hereinbefore. It was submitted that the courts below had committed an error in not accepting the case of the appellant mainly on the ground that he could not appear when the appeal was called out as he was prevented from appearing on account of illness of a member of his family due to which he has to rush home and, therefore, the same was a sufficient cause of non appearance and dismissal of the restoration petition vide Misc. Case No. 2 of 2002 was unjustified.