JUDGMENT 1. - This second appeal has come up before this Court on the Miscellaneous Application moved by the respondent u/O. 41 R. 21 CPC for recalling the order dated 19.3.1991 passed by the learned Single Judge of this Court allowing the Second Appeal ex-parte and remanding the case to the learned District Judge, Sirohi for deciding it on merits. 2. Brief facts borne out from the averments made in the application for recalling the ex-parte judgment and decree dated 19.3.1991 are that learned counsel for the respondents Mr. K.C. Samdariya was busy in another Court and he was under bona fide belief that as his appeal was shown at S. No. 77, therefore, it would take time to reach but his aforesaid bona fide belief did not come true. When he came in Court he found that the aforesaid appeal was allowed ex-parte against his own reasonable assessment of time. 3. The aforesaid application moved u/O. 41 R. 21, CPC is supported with an affidavit. The averments made in the application supported with an affidavit are not being controverted by the learned counsel for the respondents. 4. After hearing learned counsel for the parties, I am satisfied that there are sufficient ground to recall the ex-parte judgment and decree passed by this Court on 19.3.1991 and restore the instant second appeal at its original number. 5. With the consent of the learned counsel for the parties, I propose to decide the present second appeal on merits. 6. Learned counsel for the parties addressed on merit of the second appeal as well. The present second appeal has been filed against the judgment and decree dated 4.10.1990 passed by the learned District Judge, Sirohi by means of which he has partly, allowed the defendants' appeal filed against the judgment and decree of learned Munsif, Sheoganj. 7. The appeal was registered on 12.1.1990 and notice for 30.4.1990 was issued. On that date, none was present. The Advocates were also on strike, therefore, the learned District Judge fixed 21.9.1990 as the date for hearing. On that date, none was present on behalf of the respondents. 8. It appears that learned District Judge heard the argument of the learned counsel for the appellant and fixed 4.10.1990 for judgment. It is further evident from the judgment and decree dated 4.10.1990 passed by the learned District Judge, Sirohi that the appeal was partly allowed. 9. On that date, none was present on behalf of the respondents. 8. It appears that learned District Judge heard the argument of the learned counsel for the appellant and fixed 4.10.1990 for judgment. It is further evident from the judgment and decree dated 4.10.1990 passed by the learned District Judge, Sirohi that the appeal was partly allowed. 9. Against the aforesaid judgment and decree dated 4.10.1990, the instant second appeal was filed, which was allowed by the learned Single Judge of this Court on 19.3.1991 but the same has been recalled. 10. It is further evident that the plaintiff-respondents' counsel was not duly informed about the date fixed before the learned District Judge, Sirohi, therefore, there was no justification to hear the arguments in his absence and to deliver the judgment on 4.10.1990. 11. Learned District Judge has committed substantial error of law and procedure in allowing the appeal partly without giving an opportunity of hearing to the learned counsel for the plaintiff-respondent before him.As a result of the aforesaid discussion, the instant Second Appeal is allowed and judgment and decree dated 4.10.1990 passed by the learned District Judge, Sirohi is hereby set aside. The appeal is remanded back to the learned District Judge, Sirohi for deciding afresh on merit after giving an opportunity of hearing to the learned counsel for the parties.In the peculiar facts and circumstances of the present case, both the parties are d to bear their own costs.Case Remanded. *******