Krishan Kumar vs Ashok Kumar

G.C. Garg, J.—This is an unfortunate dispute between the two brothers. Respondent filed a suit that he is the owner in possession of the land in dispute. Suit was decreed and the appeal preferred thereagainst was admitted by the first appellate Court for final disposal. Notice of the appeal was given to the respondent in the appeal but it was reported by the process server that respondent was not residing in the given address. Appellant was thus asked to file process fee for service of the respondent. Process fee was not filed on one or two occassions and ultimately the appeal was dismissed for non-prosecution. An application was thereafter moved for re-admission of the appeal and for re-calling the order dismissing the appeal, but learned District Judge by order dated 28.7.1995 dismissed the application. It is against this order of the District Judge, the present appeal has been filed by the defendant.

In response to the notice issued, respondent has put in appearance.

Learned counsel for the parties have been heard. Process fee for service of the respondent in the appeal before the District Judge was initially filed but it was not filed thereafter on two occasions and the appeal was consequently dismissed for non-prosecution. It is not disputed by counsel for the appellant that process fee was not filed but he submitted that it was due to sheer negligence of the counsel that process fee could not be filed. He further submitted that for this negligence on the part of the counsel, appeal ought not to have been dismissed for non-prosecution and in any case should have been restored on payment of reasonable costs. He further submitted that having regard to the further fact that the respondent in the appeal has now put in appearance in this case, order under appeal be set aside and the appeal be ordered to be heard on its own merits subject to payment of costs. On the other hand, learned counsel for the respondent submitted that the order under appeal should be sustained as there was a deliberate effort on the part of the appellant in withholding the process fee and to delay the disposal of the appeal. He also submitted that no sufficient cause has been shown for the restoration of the appeal.

On a consideration of the matter and having regard to the fact that the dispute raised in this case relates to property between the two brothers and that there is another property owned by the parties which may again be subject matter of the suit and further that the respondent has put in appearance in this case and for the fair stand taken by the counsel for the appellants that the order dismissing the appeal be set aside subject to payment of costs, I allow this appeal and set aside the order dated 28.7.1995 and-order restoration of appeal subject to payment of Rs. 1,000/- as costs. Costs shall be paid through crossed demand draft favouring the plaintiff-respondent. The parties through their counsel are directed to appear before the District Judge, Ferozepur on 5.8.1996 for further proceedings. The District Judge shall proceed with the matter and dispose of the appeal on its own merits.