Subhash Chand Sharma Vs. Dileep

Subhash Chand Sharma vs Dileep

Disposition Appeal allowed Court Rajasthan Decided Oct 09, 2006

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Citation: sooperkanoon.com/767867
Court: Rajasthan High Court
Judge: Shiv Kumar Sharma and; Chatra Ram Jat, JJ.
Decided On: Oct 09, 2006
Subject: Civil
Disposition: Appeal allowed

Case Summary

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

Key legal issue: Civil
Outcome / disposition: Appeal allowed

Parties & Advocates

Appellant / Petitioner

Subhash Chand Sharma

Respondent

Dileep

Legal References

Cases Referred: State v. Sal Khan
Reported In: RLW2007(1)Raj555

Excerpt

- shiv kumar sharma, j.1. heard learned counsel for the appellant.2. the appellant seeks to set aside the order dated march 10, 206 of the learned single judge, whereby restoration application submitted by the appellant was dismissed.3. contextual facts depict that against the order of learned additional district judge no. 3, kota civil misc. appeal no. 3407/2005 came to be filed by the appellant on november 28, 2005. on december 19, 2005 when the civil misc. appeal was listed, the appellant and his counsel did not appear and the appeal was dismissed in default. the appellant moved an application seeking restoration of the appeal on january 3, 2006, but the learned single judge vide order march 10, 2006 dismissed the restoration application. against this order of the learned single judge that the instant special appeal has been preferred by the appellant.4. the appellate court was dismiss the appeal in default under order xli rule 17 cpc on the ground of absence of he appellant and his counsel, but appeal once dismissed in default may be readmitted under order xli rule 19 cpc. we think that justice oriented approach is required while deciding the application seeking restoration.5. the apex court in special leave to appeal civil appeal no. 872/2004 state v. khan allowed restoration of the petition by a brief order dated february 8, 2004, that reads as under:high court ought to have condoned the delay and restored the matter. high court not having done so, we do it now.6. following ratio indicated by their lordships of the supreme court in state v. sal khan, we allow the instant appeal and set aside the impugned order dated march 10, 2006. we restore the appeal to its original number. the matter may now be placed before the learned single judge.

Full Judgment

Shiv Kumar Sharma, J.

1. Heard learned Counsel for the appellant.

2. The appellant seeks to set aside the order dated March 10, 206 of the learned Single Judge, whereby restoration application submitted by the appellant was dismissed.

3. Contextual facts depict that against the order of learned Additional District Judge No. 3, Kota Civil Misc. Appeal No. 3407/2005 came to be filed by the appellant on November 28, 2005. On December 19, 2005 when the Civil Misc. Appeal was listed, the appellant and his counsel did not appear and the appeal was dismissed in default. The appellant moved an application seeking restoration of the appeal on January 3, 2006, but the learned Single Judge vide order March 10, 2006 dismissed the restoration application. Against this order of the learned Single Judge that the instant special appeal has been preferred by the appellant.

4. The appellate Court was dismiss the appeal in default under Order XLI Rule 17 CPC on the ground of absence of he appellant and his counsel, but appeal once dismissed in default may be readmitted under Order XLI Rule 19 CPC. We think that justice oriented approach is required while deciding the application seeking restoration.

5. The Apex Court in Special Leave to Appeal Civil Appeal No. 872/2004 State v. Khan allowed restoration of the petition by a brief order dated February 8, 2004, that reads as under:

High Court ought to have condoned the delay and restored the matter. High Court not having done so, we do it now.

6. Following ratio indicated by their Lordships of the Supreme Court in State v. Sal Khan, we allow the instant appeal and set aside the impugned order dated March 10, 2006. We restore the appeal to its original number. The matter may now be placed before the learned Single Judge.

Same Court & Year Rajasthan · 2006 Same Parties Subhash Chand Sharma vs Dileep Same Subject Civil Same Judge Shiv Kumar Sharma and; Chatra Ram Jat, JJ.

Civil