Case Note & Summary
The appellant, original defendant in a suit, challenged the judgment and decree of the trial court dated 17th September 1987 by filing an appeal in the District Court. The appeal was admitted and execution of the decree was stayed on 17th November 1982. On 28th July 1992, when the appeal was called for hearing, the appellant and his advocate were absent, resulting in dismissal of the appeal for default. The appellant filed an application under Order 41 Rule 19 of the Code of Civil Procedure, 1908, seeking restoration of the appeal. The learned Additional District Judge, Kolhapur, dismissed the application on 9th July 1993, leading to the present appeal from order. The appellant contended that he was misled by his advocate regarding the date of hearing and that the advocate failed to appear. The respondents opposed the restoration. The High Court, per Justice Abhay S. Oka, held that the explanation offered by the appellant constituted sufficient cause for his absence and that of his advocate. The court observed that the appellate court should adopt a liberal approach in matters of restoration to ensure that appeals are decided on merits. Consequently, the impugned order was set aside, the application for restoration was allowed, and the appeal was restored to the file of the District Court for hearing on merits. The parties were directed to appear before the District Court on 21st February 2005.
Headnote
A) Civil Procedure - Restoration of Appeal - Order 41 Rule 19 CPC - Sufficient Cause - Appeal dismissed for default due to absence of appellant and advocate - Appellant claimed he was misled by his advocate about the hearing date and the advocate failed to appear - Held that the explanation constituted sufficient cause and the appeal ought to be restored to file for hearing on merits (Paras 1-4).
Issue of Consideration
Whether the appellant had sufficient cause for his absence and that of his advocate when the appeal was dismissed for default, warranting restoration under Order 41 Rule 19 of the Code of Civil Procedure, 1908.
Final Decision
The appeal from order is allowed. The impugned order dated 9th July 1993 passed by the learned Additional District Judge, Kolhapur in Misc. Application No.208 of 1992 is set aside. The said Misc. Application is allowed. The appeal (Regular Civil Appeal No. 208 of 1987) is restored to the file of the District Court, Kolhapur for hearing on merits. The parties shall appear before the District Court, Kolhapur on 21st February 2005.
Law Points
- Restoration of appeal dismissed for default
- Order 41 Rule 19 CPC
- Sufficient cause for absence
- Liberal approach in restoration
- Duty of appellate court to decide on merits
