Kapildeo Singh vs Hari Singh and Others

Gurusharan Sharma, J.—Title Suit No. 83 of 1975 was dismissed. Plaintiffs, therefore, filed Title Appeal No. 123 of 1978 which was dismissed for default on 22.1.1985.

On 8.7.1985 Misc. Case No. 10 of 1985 was filed under Order 41 Rule 19 of the CPC for restoration of the said appeal.

It was stated that pairvikar of the appeal was entrusted to One Binda Singh, an Advocate''s Clerk who fell ill and ultimately died. In such circumstances counsel for the appellants was not appearing on the dates fixed in the appeal before the Court and none was present on 22.1.1985 also when the appeal was called out for hearing and consequently, it was dismissed for default.

A perusal of the order dated 22.1.1985 shows that counsel for the appellants was also informed but he did not appear on the said date.

Two witnesses were examined to explain the circumstances under which nobody on behalf of the appellants attended the Court and the appeal was dismissed for default. In may opinion personal attendance of appellants was not necessary on each and every date fixed in the appeal as they had already engaged counsel and were represented through the said counsel.

It was the duty of the Counsel to appear and inform the Court, if he had no instruction from the appellants, but it appears that even after information given to the counsel by the Court he failed to appear and the appeal was dismissed for default. For the fault of the Counsel the appellants should not have been made to suffer.

I, therefore, set aside the impugned order whereby prayed for readmission of the appeal was refused and T.A. No. 123 of 1978 is restored.

In the result, the appeal is allowed but without costs. Lower Court records may in set down forthwith.