Law: Civil Procedure Code (V of 1908)

Section: O.XLI,R.19,O.III,R.4

Law: Specific Relief Act, 1877

Section: 54

Civil Procedure Code (V of 1908)--- ----O. XLI, R. 19 & O. III, R. 4---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Appeal dismissed for non -prosecution---Re-admission of appeal---Petition for readmission was filed with affidavit of counsel---Effect---Petition for readmission of appeal was dismissed on the ground that same had not been filed by the appellants themselves nor any reason had been shown for their non-appearance on the date when appeal was dismissed---Validity--- Petition for readmission of appeal should have been allowed as same was promptly filed with affidavit of counsel explaining reason for his non-appearance---Matter was to be decided on merits rather than on the basis of technicalities---Absence of petitioners' counsel was neither intentional nor deliberate but on account of circumstances beyond his control---Appointment of counsel would remain in force until determined with leave of the Court or until party appointing him or counsel died or until all proceedings .with regard to his client ended---Counsel had right to do everything that was necessary for proper conduct of the case---If case was decided ex-parte or dismissed in default then counsel had implied authority to get that order set aside so that the case be heard on merits---Petitioners had engaged the counsel who was representing them and his inability to attend the Court proceedings had been explained duly supported by affidavit---When counsel was attending the Court, there was no occasion to raise any objection with regard to non-availability of parties unless their presence was specifically required---Counsel was stuck in traffic and same being unavoidable circumstance was beyond his control and could be regarded a sufficient ground---Determination of Appellate Court qua non-appearance of petitioners being fatal was un-warranted case was not fixed for their appearance---Appellate Court had committed material illegality and irregularity while not accepting the application for restoration of appeal by the counsel on behalf of his client---Impugned order passed by the Appellate Court was set aside---Petition for readmission of appeal was allowed and…

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