Kapildeo Singh Vs. Hari Singh and ors.

Kapildeo Singh vs Hari Singh and ors.

Disposition Appeal Allowed Court Patna Decided Sep 20, 2000

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https://sooperkanoon.com/case/134550

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Citation: sooperkanoon.com/134550
Court: Patna High Court
Judge: Gurusharan Sharma, J.
Decided On: Sep 20, 2000
Case Number: A.F.O.O. No. 220 of 1991
Subject: ;Civil
Disposition: Appeal Allowed

Case Summary

AI-generated summary - not the official court judgment text.

Dismissal of appeal - Non-appearance of appellant--Legality of--Appeal was dismissed for default--Neither appellant nor this Counsel appeared--Though Counsel for appellant was informed to appear on particular date--Held,personal appearance of appellant is not necessary on each and every date--And for the fault of Co...

Key legal issue: ;Civil
Outcome / disposition: Appeal Allowed

Parties & Advocates

Appellant / Petitioner

Kapildeo Singh

Respondent

Hari Singh and ors.

Excerpt

dismissal of appeal - non-appearance of appellant--legality of--appeal was dismissed for default--neither appellant nor this counsel appeared--though counsel for appellant was informed to appear on particular date--held,personal appearance of appellant is not necessary on each and every date--and for the fault of counsel appellant should not be made to suffer--direction issued for re-admission of appeal. - - 6. it was the duty of the counsel to appear and inform the court, if he had no instruction from the appellants, but it appears that even after information given to the counsel by the court he failed to appear and the appeal was dismissed for default.gurusharan sharma, j.1. title suit no. 83 of 1975 was dismissed. plaintiffs, therefore, filed title appeal no. 123 of 1978 which was dismissed for default on 22.1.1985.2. on 8.7.1985 misc. case no. 10 of 1985 was filed under order 41 rule 19 of the code of civil procedure for restoration of the said appeal.3. it was stated that pairvikar of the appeal was entrusted to one binda singh, an advocate's clerk who fell ill and ultimately died. in such circumstances counsel for the appellants was not appearing on the dates fixed in the appeal before the court and none was present on 22.1.1985 also when the appeal was called out for hearing and consequently, it was dismissed for default.4. a perusal of the order dated 22.1.1985 shows that counsel for the appellants was also informed but he did not appear on the said date.5. two witnesses were examined to explain the circumstances under which nobody on behalf of the appellants attended the court and the appeal was dismissed for default. in may opinion personal attendance of appellants was not necessary on each and every date fixed in the appeal as they had already engaged counsel and were represented through the said counsel.6. it was the duty of the counsel to appear and inform the court, if he had no instruction from the appellants, but it appears that even after information given to the counsel by the court he failed to appear and the appeal was dismissed for default. for the fault of the counsel the appellants should not have been made to suffer.7. i, therefore, set aside the impugned order whereby prayed for readmission of the appeal was refused and t.a. no. 123 of 1978 is restored.8. in the result, the appeal is allowed but without costs. lower court records may in set down forthwith.

Full Judgment

Gurusharan Sharma, J.

1. Title Suit No. 83 of 1975 was dismissed. Plaintiffs, therefore, filed Title Appeal No. 123 of 1978 which was dismissed for default on 22.1.1985.

2. On 8.7.1985 Misc. Case No. 10 of 1985 was filed under Order 41 Rule 19 of the Code of Civil Procedure for restoration of the said appeal.

3. It was stated that pairvikar of the appeal was entrusted to One Binda Singh, an Advocate's Clerk who fell ill and ultimately died. In such circumstances counsel for the appellants was not appearing on the dates fixed in the appeal before the Court and none was present on 22.1.1985 also when the appeal was called out for hearing and consequently, it was dismissed for default.

4. A perusal of the order dated 22.1.1985 shows that counsel for the appellants was also informed but he did not appear on the said date.

5. Two witnesses were examined to explain the circumstances under which nobody on behalf of the appellants attended the Court and the appeal was dismissed for default. In may opinion personal attendance of appellants was not necessary on each and every date fixed in the appeal as they had already engaged counsel and were represented through the said counsel.

6. It was the duty of the Counsel to appear and inform the Court, if he had no instruction from the appellants, but it appears that even after information given to the counsel by the Court he failed to appear and the appeal was dismissed for default. For the fault of the Counsel the appellants should not have been made to suffer.

7. I, therefore, set aside the impugned order whereby prayed for readmission of the appeal was refused and T.A. No. 123 of 1978 is restored.

8. In the result, the appeal is allowed but without costs. Lower Court records may in set down forthwith.

Same Court & Year Patna · 2000 Same Parties Kapildeo Singh vs Hari Singh and ors. Same Subject ;Civil Same Judge Gurusharan Sharma, J.

;Civil