High Court of Judicature at Allahabad
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Raghubir Singh & Another v. Additional District Judge & Another - WRIT - C No. 38492 of 2007  RD-AH 14420 (23 August 2007)
Hon'ble Janardan Sahai, J.
The suit filed by the petitioners was dismissed by the trial court. The petitioners filed an appeal No. 57 of 2004. Notices were issued to the respondents in the said appeal. It appears that the date fixed for hearing was 17.8.2004 on which date the petitioners did not appear and the appeal was dismissed in default. The petitioners filed a restoration application explaining their absence on the ground that they were ill and were suffering chest pain. The application was filed within the prescribed period of limitation. The application was rejected by the appellate court by its impugned order dated 8.5.2007 on the ground that the petitioners did not file any medical certificate and there was no reason given why their counsel did not appear on the date fixed.
I have heard Sri Dhiraj Srivastava, learned counsel for the petitioners and the learned counsel for the respondents.
Both the parties' counsel agree that the writ petition may be disposed of at this stage itself. It is not in dispute that no counter affidavit was filed to the restoration application. It was not a case where the petitioners were adopting any delaying tactics. In fact the appeal itself was of the year 2004 and according to the averment made in the writ petition the defendant/respondent no. 2 had not even put in appearance. It is submitted by the petitioners counsel that the petitioners had explained their absence in the case on account of illness and the counsel could also not be briefed. In the facts and circumstances it appears that sufficient cause had been shown by the petitioners for their absence. The order of the court below dated 8.5.2007 rejecting the restoration application is set aside. The restoration is allowed. The appeal may be heard on merits. The writ petition is allowed.
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