V.Abdul Rashid vs Wali Mohammad and Another

S. Varma J.

Civil Appeal No. 96 of 1977 was dismissed for want of prosecution by the First Additional District Judge, Kheri. An application for setting aside the exparte dismissal of the appeal was moved under Order XLI, Rule 19 of the Code of Civil Procedure. The Additional District Judge dismissed the application for restoration. From a perusal of the record, it appears that the appellant could not put in appearance on the date of hearing on account of illness. When the appeal was dismissed for want of prosecution, an application for restoration was moved. In the application it was stated that the appellant was laid with fever and loose motions and, therefore, was unable to attend the court. This averment contained in the application was challenged by the other side and the court below observed that the appellant who is meat seller was present at his shop selling meat. The Court below has disbelieved the version of the appellant that he was ill in the manner indicated in the application. The present appeal is directed against an order dismissing the restoration application.

I have perused the record and I find that the ends of justice would be better met if the appellant is afforded the opportunity of being heard in the appeal. In this view of the matter, I direct that Civil Appeal No. 96 of 1977 pending in the Court of the Additional District Judge, Kheri shall be restored to its original number on payment of Rs. 150 as costs to the respondents. The .parties are directed to appear before the First Additional District Judge, Kheri on the 4th of February, 1985. If on or before 421985 a sum of Rs. 150 as costs is not paid to the respondents, the appeal shall automatically stand dismissed. If the costs are paid, the First Additional District Judge will hear the appeal on merits. Costs in this Court will be borne by the parties.

(ordered accordingly.)