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1976 DIGILAW 99 (ALL)

Brijpali v. Rudra Narain

1976-02-16

H.N.AGARWAL

body1976
JUDGMENT H.N. Agarwal, M. - This is a revision against the order dated March 11, 1970 passed by Sri S.N. Hasan, Additional Commissioner, Faizabad Division, Faizabad restoring the appeal and setting aside the order of dismissal for default of the Appeal No. 32/327 arising out of a cause under Sections 229-B. 209, U.P.Z.A. and L.R. Act decided on October 16, 1969. 2. I have heard the learned counsels for the parties and have gone through the record. 3. The revisionists Srimati Brijpali and Hardeo Lal had filed the suit against the opposite parties Rudra Narain and others under Sections 229-B/ 209, U.P.Z.A. and L.R. Act. This trial court decreed the suit on January 30, 1969. Rudra Narain went up in appeal before the Additional Commissioner Faizabad Division which was dismissed in default of the appellant on January 16, 1970. Subsequently the learned Additional Commissioner restored the appeal on payment of Rs. 5/- as costs on March 11, 1970. Srimati Brijpali and Hardeo have now come up in revision against this order. 4. The learned counsel for the revisionists has argued that under Order 41, Rule 19, C.P.C. it was necessary to give a finding regarding the sufficient cause and in this case no such finding had been given by the lower appellate court. As such its decision was arbitrary and illegal and without jurisdiction. The learned counsel has further contented that under Order IX Rule 13 C.P.C. also the words 'sufficient cause' have been used. So, sufficient cause is necessary for setting aside the ex parte decree and restoration of the appeal but the learned Additional Commissioner has not given such finding. As such the decision suffers from a material irregularity. The learned counsel for the revisionist has in support of this argument referred to Radhan Mohan v. Abbas Ali, A.I.R. 1933, Alld. So, sufficient cause is necessary for setting aside the ex parte decree and restoration of the appeal but the learned Additional Commissioner has not given such finding. As such the decision suffers from a material irregularity. The learned counsel for the revisionist has in support of this argument referred to Radhan Mohan v. Abbas Ali, A.I.R. 1933, Alld. 294 wherein a Division Bench of the Allahabad High Court has held that the Court has no jurisdiction under Order IX Rule 13 C.P.C. to set aside an ex parte decree against the defendant unless the conditions namely (1) that the summons was not duly served and (2) that he was prevented from appearing owing to sufficient cause, are fulfilled, he has also referred to Raja Ram v. Baij Nath, 1965 R.D. 246 in which a Full Bench of the Board of Revenue has observed as under :- "Before an application for the restoration of the suit which had been dismissed in default is restored or before an application for the restoration of the restoration application is allowed, it is the duly of the court to examine whether the reasons for the absence which resulted in the dismissal of the application, were sufficient or not. Without giving such a finding, the order of the court below would not be legal merely on the ground that the application filed was within the prescribed period of limitation." 5. I am entirely in agreement with the principle enunciated in the above judgments. Order 41 Rule 19 C.P.C. requires the appellate court to readmit the appeal dismissed in default only where it is proved that the appellant was prevented by any sufficient cause from appearing when the appeal was called on for hearing. Thus, it has to be seen whether sufficient cause has been proved or not. The appeal was fixed for December 8, 1969 when the trial court's record had not yet been received. The case was, therefore, adjourned for January 16, 1970. On January 16, 1970 it was dismissed in default of the appellant. Thus, it has to be seen whether sufficient cause has been proved or not. The appeal was fixed for December 8, 1969 when the trial court's record had not yet been received. The case was, therefore, adjourned for January 16, 1970. On January 16, 1970 it was dismissed in default of the appellant. The same day the counsel for the appellant had moved an application to the effect that the appellant was ill and effect that the appellant was ill and had instructed his counsel to attend the case but on the call of the case the counsel had gone to attend another case and, therefore, could not attend the case when it was called. The counsel came to the court soon after but the appeal has already been dismissed in default. As the restoration application had been moved on January 16, 1970 itself, there is no reason to disbelieve the facts stated in this application. The counsel for the respondent had also written on January 16, 1970 on this application that he had no objection to the appeal being rested. On March 11, 1970 the learned Additional Commissioner had passed the order restoring the appeal after hearing both the counsels. This would show that the appellant had duly proved sufficient cause and the learned Additional Commissioner rightly restored appeal. 6. Order 41 Rule 19 C.P.C. does not specifically require that the court re-admitting the appeal shall record detailed reasons for doing so. The omission on the part of the learned Additional Commissioner to record that sufficient cause had been proved is, therefore, a minor omission and does not amount to a material irregularity. The effect of restoring the appeal is merely that it will now be heard and decided on merits. Thus no miscarriage of justice is likely to be caused to any party. 7. There is no force in this revision, which is hereby dismissed.