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Birj Lal Vs. Bua Ram and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in17Ind.Cas.292
AppellantBirj Lal
RespondentBua Ram and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 19 - appeal dismissed in absence of both parties--restoration--notice to other side, whether necessary. - - it is contended on behalf of the applicant that the order of the lower court restoring the appeal is bad inasmuch as no notice was sent to or served upon the applicant to show cause why the appeal of the opposite party should not be restored......the order of the learned additional subordinate judge of cawnpore, restoring the appeal of the opposite party which had been struck off for default. it is contended on behalf of the applicant that the order of the lower court restoring the appeal is bad inasmuch as no notice was sent to or served upon the applicant to show cause why the appeal of the opposite party should not be restored. it is further contended that the affidavit filed by the opposite party in the lower court explaining his absence on the day of hearing of the appeal is insufficient and does not excuse his absence. the order of the lower court was passed under rule 19, order xli of the code of civil procedure. that rule does not require any notice to be issued to the respondents prior to making an order of.....
Judgment:
ORDER

Rafique, J.

1. This is an application in revision under Section 115 of the Code of Civil Procedure against the order of the learned Additional Subordinate Judge of Cawnpore, restoring the appeal of the opposite party which had been struck off for default. It is contended on behalf of the applicant that the order of the lower Court restoring the appeal is bad inasmuch as no notice was sent to or served upon the applicant to show cause why the appeal of the opposite party should not be restored. It is further contended that the affidavit filed by the opposite party in the lower Court explaining his absence on the day of hearing of the appeal is insufficient and does not excuse his absence. The order of the lower Court was passed under Rule 19, Order XLI of the Code of Civil Procedure. That rule does not require any notice to be issued to the respondents prior to making an order of restoration of an appeal, struck off for default. But, it is said for the applicant that under Section 107 Clause 2, the provisions of the Code of Civil Procedure applicable to Courts of first instance are also applicable to the Appellate Courts and under the rules applicable to the Courts of first instance, no suit dismissed for default can be restored without notice to the defendant. The rules on the subject of dismissal and restoration of suits are given in Order IX of the Code. If a suit is dismissed in the absence of both the plaintiff and the defendant, the suit can be restored on the application of the plaintiff without issuing any notice to the defendant. But in cases where the plaintiff is absent and the defendant is present, the law requires that notice should be given to the defendant before restoring the suit. Even if the contention of the applicants that under Section 107, Clause 2, the rules under Order IX, applicable to the Courts of first instance, are also applicable to the Appellate Courts be conceded, it does not show that the order of the lower Court is erroneous. For it appears from the record that neither party was present on the day of hearing of the appeal, when the order of dismissal of the appeal was passed. In a suit dismissed under similar circumstances, no notice would be required to be issued to the defendant before passing an order of restoration of the case. The second contention that the affidavit of the opposite party does not disclose sufficient reason for his absence on the day of hearing of the appeal is not made out. If the allegations made in the affidavit are correct, and there is no reason to believe otherwise, the opposite party was unavoidably absent on the day of hearing of the appeal. The application fails and is dismissed with costs.


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