NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3542  OF 2009 (Arising out of SLP(C) No. 15587 of 2008)

Satpal Singh                                                                          ……….Appellant

Versus

Chunni Lal (since deceased) through LRs.                           …….. Respondent

ORDER

H.L. Dattu,J.  

1)   This is an appeal by Special Leave against the judgment and order dated  

23.5.2008 of the High Court of Judicature for Rajasthan, Jaipur Bench,  in  

S.B.  Civil  Misc.  Appeal  No.  759  of  2002.  We  grant  special  leave  and  

dispose of this appeal as hereunder.

2)   The respondent herein, had filed a suit for eviction against the appellant  

in the year 1993. The suit was decreed by the Trial Court on 31.1.2001,  

granting possession of the suit schedule premises to the respondent.

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3)   The appeal filed against the said judgment and decree was dismissed for  

default  on  19.4.2002  by  the  Additional  District  Judge  due  to  non-

appearance  of  the  appellant  and his  learned  counsel.  The appellant  then  

moved  an  application  under  Order  41  Rule  19  of  the  Code  of  Civil  

Procedure read with Section 5 of the Limitation Act, 1963 for restoration of  

the First Appeal No. 4 of 2001. The same was dismissed on 19.4.2002.

4)   The appellant  filed  a second  appeal challenging the correctness or  

otherwise of the order dated 19.4.2002 in S.B. Civil Misc. Appeal No. 759  

of  2002. The appeal  was dismissed vide judgment dated 23.5.2008. The  

Single  Judge  had  come  to  the  conclusion  that  the  appellate  Court  was  

justified in dismissing the application, holding that there was no sufficient  

cause shown either for the condonation of delay or for setting aside the ex-

parte order, and thereby confirmed the order of the appellate Court.

5)   The appellant, in the application filed for restoration of the appeal  had  

stated, that, on receiving the intimation of the serious illness of his elder  

brother, he immediately left to see his brother on 15.1.2002. It appears from  

the Death Certificate of Balbir Singh brother of the appellant that Balbir  

Singh died on 20.1.2002, following the day when the appeal was fixed for  

hearing i.e. 19.1.2002, before the appellate Court. It is also the case of the  

appellant that his wife met with an accident and due to which he was busy  

in  attending  her  for  almost  one  and half  months.  In  view of  the  above  

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unforeseen events, the appellant could not appear before the Court, on the  

day when the appeal had been fixed for hearing. The appellant had also  

stated that it was the duty of the counsel to appear in the matter when it was  

listed for hearing and also to intimate his client about the outcome of the  

appeal.  It  was further stated, that his learned counsel for the reason best  

known to him also did not appear on the date fixed for hearing of the appeal  

nor he intimated about its dismissal of the appeal for default.  

6)   Having gone through the explanation offered in the application filed for  

restoration of the appeal,  in our considered view, the learned Single Judge  

was  not  justified  in  dismissing  the  application  for  restoration  of   First  

Appeal No. 4 of 2001 for default under Order 41, Rule 19 of the Code, on  

the ground of non- appearance of the appellant or his learned counsel. We  

have no doubt in our mind, that the appellant was justified in moving the  

application for restoration of the appeal and setting aside of ex-parte order  

particularly  when  his  brother  had  died  and  his  wife  had  met  with  an  

accident during the relevant period.  

7)   In the result, the appeal succeeds and is allowed. The order passed by the  

High Court in S.B. Civil Misc. Appeal No. 759 of 2002 dated 23.05.2008  

and the order passed by the first appellate court in Appeal No. 4 of 2001 are  

set aside. The first appellate court is directed to take on board the appeal  

and decide the appeal on merits within an outer limit of six months from the  

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date of receipt of certified copy of the order passed by this Court. No order  

as to costs.

                                                                                     …………………………………J.                                                                                        [TARUN CHATTERJEE]

                                                                                     …………………………………J.                                                                                        [ H.L. DATTU ] New Delhi, May 13, 2009.

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