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Rajasthan High Court · body

2018 DIGILAW 1754 (RAJ)

Gokal Singh v. Khem Chand

2018-08-20

GOVERDHAN BARDHAR, MOHAMMAD RAFIQ

body2018
JUDGMENT Mohammad Rafiq, J. - This appeal challenges the order dated 23.04.2018 passed by learned Single Judge whereby learned Single Judge dismissed S.B. Civil Restoration Application No.704/2017 in S.B. Civil Second Appeal No.294/2013. The restoration application was barred by limitation and that too was also dismissed by the learned Single Judge vide order dated 23.04.2018. 2. The appellants filed S.B. Civil Second Appeal No.294/2013 before the Single Bench assailing the judgment and decree dated 22.08.2013 passed in eviction suit. It is stated that the second appeal was listed before the Court on 12.04.2016 but the learned counsel for the appellants could not appear in the matter when it was taken up for hearing as he was out of station for his personal work, however, he asked his colleague to attend the court in the matter, who informed him about adjournment of the matter so the appellant and his counsel were in the apprehension that the case had been adjourned and it will be listed on some other day. It was only when the appellants received a notice for eviction of the house in dispute from the lower court, they came to know that the appeal had already been dismissed in default on 12.04.2016. The appellants then filed restoration application with the application for condonation of delay. The notices of the applications were issued to the respondent and the respondent filed reply thereto. However, learned Single Judge dismissed the application for condonation of delay as also the application for restoration of the second appeal. Hence this appeal. 3. Having heard learned counsel for the parties and perused the material on record, this court is of the view that the appellants were under bona-fide impression that their counsel would attend the matter as and when the same is listed before the court, but on the listed date the counsel remained out of station and his colleague, whom he instructed to attend the matter, also remained absent and the matter remained unattended and was dismissed in default, therefore, the absence of the appellants or their counsel was bona-fide. 4. For stated reasons, the appeal is allowed with costs of Rs. 1000/- to be paid to the respondent for inconvenience. The order dated 23.04.2018 is set aside. The restoration application being S.B. Civil Restoration Application No.704/2017 is allowed and consequently the application for condonation of delay is also allowed. 4. For stated reasons, the appeal is allowed with costs of Rs. 1000/- to be paid to the respondent for inconvenience. The order dated 23.04.2018 is set aside. The restoration application being S.B. Civil Restoration Application No.704/2017 is allowed and consequently the application for condonation of delay is also allowed. S.B. Civil Second Appeal No.294/2013 is restored to its original number to be listed before the regular bench.