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Mt. Kalawati Vs. Pundit Daya Nand - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All362
AppellantMt. Kalawati
RespondentPundit Daya Nand
Excerpt:
.....board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the..........to mention the names of all persons on whom notices of the application should be served; but if no names are mentioned and the record enables the court to ascertain the names of persons to whom notice should be given and notice is in fact given, the application cannot be dismissed merely on the ground that names of some of the respondents were not mentioned in the heading of it and that therefore no application can be considered to have been made against such respondents within the period of limitation. as already stated, all that the law requires is that an application should be made in the appeal for its restoration. this was done in the present case, and notices should have been issued to all such parties to the appeal who were interested in opposing the application.3. another ground.....
Judgment:
ORDER

Niamatullah, J.

1. This is an application under Section 115, Civil P.C., for revision of an order passed by the Subordinate Judge, Aligarh, restoring an appeal which had been dismissed for default. It appears that in the appeal pending in the lower Court Bhojraj respondent died during pendency of the appeal. An application was made by the appellant that his legal representatives, Mt. Kalawati, Kishan Lal and Binda Prasad, be substituted for him. Notices were issued to these persons. Services were effected on Mt. Kalawati but not on the other two. The case was fixed for 20th November 1935, when the appellant failed to appear. The appeal was dismissed for default. Within 30 days of the dismissal, an application was made for restoration. In that application the names of Kishan Lal and Binda Prasad were mentioned but Mt. Kalawati was not mentioned. The lower Court accepted the allegations contained in an affidavit as regards the circumstances in which the appellant was prevented from appearing on 20th November 1935, and restored the appeal.

2. It is contended in revision that Mt. Kalawati not having been impleaded in the application for restoration within 30 days, it was barred by time as against her. I do not think this contention can be accepted. Under Order 41, Rule 19, Civil P.C., it is open to an appellant, whose appeal has been dismissed for default, 'to apply to the appellate Court for the re-admission of the appeal'. He did make such an application. There is nothing in the Civil Procedure Code which provides that the application should expressly implead a particular party. Ordinarily it is advisable to mention the names of all persons on whom notices of the application should be served; but if no names are mentioned and the record enables the Court to ascertain the names of persons to whom notice should be given and notice is in fact given, the application cannot be dismissed merely on the ground that names of some of the respondents were not mentioned in the heading of it and that therefore no application can be considered to have been made against such respondents within the period of limitation. As already stated, all that the law requires is that an application should be made in the appeal for its restoration. This was done in the present case, and notices should have been issued to all such parties to the appeal who were interested in opposing the application.

3. Another ground on which the revision is pressed is that no sufficient cause for non-appearance was proved by the appellant. The lower Court has accepted the allegations contained in the application for restoration and has held that there was sufficient cause. I cannot say that the lower Court acted illegally or with material irregularity in the exercise of its jurisdiction within the meaning of Section 115, Civil P.C. The application for revision is dismissed with costs.


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