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Rayapprolu Viswanadham Vs. Rayaprolu Dakshinamurthy - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. No. 609 of 1948
Judge
Reported inAIR1950Mad573
ActsCode of Civil Procedure (CPC) 1908 - Order 41, Rule 19
AppellantRayapprolu Viswanadham
RespondentRayaprolu Dakshinamurthy
Appellant AdvocateG. Venkatarama Sastri, Adv.
Respondent AdvocateA. Raghaviah, Adv.
DispositionAppeal allowed
Excerpt:
- .....to prosecute the appeal, should be made a ground disentitling him for restoration and hare the appeal restored. in view of the uncontradicted fact that his sister died on 3rd september 1947 and as the appeal stood posted for hearing within ten days from her death, presumably the appellant had to attend the funeral ceremonies of his sister and he was also unwell for over a month. in these circumstances, the learned judge ought to have accepted the application and restored the appeal to file.2. in the result, the appeal is allowed and the order of dismissal for default is set aside and the appeal is directed to be restored to file. as there were laches on the part of the appellant in not informing his vakil even about the grounds of his absence, i think it is a case in which he should.....
Judgment:

Satyanarayana Rao, J.

1. This is an appeal filed against the, order of the Subordinate Judge, Bapatla, dismissing the appellant's application under Order 41, Rule 19, Civil P. C., to set aside the order of dismissal for default of an appeal and restore the same to file. It is common ground that on 9th September 1947 on which date the appeal stood finally posted, the appellant did not turn up and did not produce the revenue extracts as required by the Court. In the application for restoration, the appellant alleged two grounds for his default; one was the illness of his sister, who, according to him, was ailing for over two months before that date and ultimately died in his house on 3rd September 1947, that is, six days before the date on which the appeal was posted. He was also ailing for about a month at or about that time. On these two grounds be prayed that the appeal should be restored to file after setting aside the order dismissing his appeal for default. The allegations in the affidavit filed in support of the application were not traversed by a counter affidavit and it may, therefore, be assumed that the allegations made therein are true. The learned Judge however dismissed the application on the ground that there was a prior default of the appellant and that he did not properly prosecute the appeal in spite of previous adjournments. If there were, valid excuse for his absence on the date on which the appeal was dismissed for default, I do not think that previous negligence or want of diligence on the part of the appellant to prosecute the appeal, should be made a ground disentitling him for restoration and hare the appeal restored. In view of the uncontradicted fact that his sister died on 3rd September 1947 and as the appeal stood posted for hearing within ten days from her death, presumably the appellant had to attend the funeral ceremonies of his sister and he was also unwell for over a month. In these circumstances, the learned Judge ought to have accepted the application and restored the appeal to file.

2. In the result, the appeal is allowed and the order of dismissal for default is set aside and the appeal is directed to be restored to file. As there were laches on the part of the appellant in not informing his vakil even about the grounds of his absence, I think it is a case in which he should be directed to pay the costs of the respondent in this Court and also in the lower appellate Court. The appellant will there, fore pay the costs of the respondent in this appeal and also costs of the petition in the lower Court which would be taxed by the lower Court.


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