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CASE NO.: Appeal (civil)  1583 of 2007

PETITIONER: Sarman Singh

RESPONDENT: Kishan Singh (dead) thr. Lrs.and Ors

DATE OF JUDGMENT: 26/03/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T (Arising out of SLP (C) Nos. 4441-4442 of 2005)

Dr. ARIJIT PASAYAT, J.

       Leave granted.

       Challenge in these appeals is to the order passed by  a learned Single Judge of the Punjab and Haryana High  Court dismissing the application to recall the order  dismissing the Second Appeal.  

       The background facts in a nutshell are as follows:

       Appellant filed Second Appeal No.4802/2003 before  the High Court questioning correctness of the order  passed by a learned Second Additional District Judge,  Kapurthala.  By the said order the first Appellate Court  affirmed the order of the learned Civil Judge, Junior  Division, Kapurthala. The matter was listed on 8.11.2004.  On that day there was no appearance on behalf of the  appellant. The High Court referred to the merits of the  case and dismissed the appeal noting that none appeared  for the appellant. It is to be noted that the appeal was filed  by the defendants.  

       An application in terms of Order XLI Rule 19 of the  Code of Civil Procedure, 1908 (in short the ’Code’) read  with Section 151 of the Code was filed to restore the  appeal for deciding the same on merits. It was indicated in  the application for restoration as to why there was non- appearance on the date fixed. In the application it was  categorically stated that the matter was listed at item  No.260 before the learned Single Judge. When the matter  was called learned counsel for the appellant was arguing  another matter before a Bench of Hon’ble the Chief  Justice. In the case at hand respondents were yet to put  appearance. So the assisting counsel was instructed to  attend the Court to note the next date.   By the time the  assisting counsel reached the Court, the matter had  already been taken up and dismissed for want of  prosecution.  It is submitted that the High Court did not  take note of the aforesaid factual aspects and on the  contrary dismissed the application for restoration on the  ground that the matter was decided on merits.  

       Learned counsel for the respondents submitted that  since the matter had been decided on merits there was no

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scope for recalling the order.  

It is to be noted that in the application for restoration  the reasons for non appearance at the time when the  matter was taken up had been indicated. It was noted that  the matter was fixed for filing of the vakalatnama of the  respondents. There was unintentional absence and the  reason for the same was  indicated. The High Court has  not found the reason indicated to be in any manner  incorrect or untrue. Merely because the appeal has been  dismissed on merits that could not have been a ground to  refuse restoration of the appeal.  

       As rightly contended by learned counsel for the  appellant the reason for non appearance when the matter  was taken up had been indicated. There is no dispute that  the factual scenario as projected by the appellant was the  correct one. Mere fact that the appeal was dismissed on  merits could not have been a ground to refuse restoration.  Accordingly, we set aside the impugned order of the High  Court and direct restoration of the Second Appeal.  

       The appeals are allowed. There will be no order as to  costs.