ORDER R.P. Misra and Krishna Murari, JJ.
1. Heard learned Counsel for the parties.
2. The first appeal from order is directed against the order dated 1.7.2005 passed by Additional District Judge, Court No. 5, Agra, dismissing the application filed by the appellant to recall order dated 30.7.2004, dismissing the appeal in default.
3. The facts are that a suit was filed by the appellant against the State of U.P. and Collector, Agra, seeking permanent injunction to restrain them from realizing a sum of Rs. 1,98,675 through coercive measure in pursuance, of the order dated 25.9.1986, passed by officer-in-charge, Mines. The said suit was dismissed by the trial court vide judgment dated 25.9.1988. The plaintiff-appellant filed First Appeal No. 917 of 1988 before this Court. The appeal was admitted and a conditional interim order was passed restraining the defendants-respondents from recovering the amount subject to the appellant furnishing security of the said amount other than cash and bank guarantee. In August, 1996, due to change brought in the pecuniary jurisdiction the appeal was transferred back to the District Judge, Agra and was renumbered as Civil Appeal No. 282. of 1996 and remained pending. The appeal came to be dismissed in default for non-appearance of the appellant on 30.7.2004. An application duly supported by an affidavit was filed by the appellant to recall the order dated 30.7.2004. It was stated therein that on account of illness the appellant could not present himself when the case was called out and as such it was dismissed in default.
4. The court below has dismissed the restoration application on the ground that the appeal has been dismissed in default twice earlier and it appears that the appellant is not interested in prosecuting the appeal and is adopting dilatory tactic. A further finding has been recorded by the court below that: from a perusal of the order sheet it appears that the appellant has never appeared after filing the appeal.
5. A copy of the complete order sheet has been annexed as Annexure-1 to the affidavit filed in support of the stay application. A perusal of the same goes to show that on most of the dates the appellant has been present. It is clear that the aforesaid finding recorded by the court below is totally against the record and appears to be based on misreading of the record. It is no doubt correct that the appeal has been dismissed in default twice earlier and was restored on the application of the appellant. However, earlier default cannot constitute a ground for rejecting the restoration application if sufficient cause has been shown for non-appearance. The appellant has stated that he could not appear on account of his illness. In our opinion, illness constitutes a good ground for non-appearance and the order dismissing the appeal in default is liable to be recalled on that ground particularly when a perusal of the order sheet goes to show that the appellant was diligently prosecuting the appeal.
6. In view of the aforesaid discussions, the first appeal from order stands allowed. The impugned order dated 1.7.2005, is set aside. Civil Appeal No. 282 of 1996 stands restored to its original number.