Law:

Section:

Civil Procedure Code (Y of 1908)--- ----O.XLI, R.19---Restoration of appeal dismissed in default---Application for restoration of appeal was dismissed without affording opportunity of substantiating averments made in such application---Summary dismissal of restoration application was unwarranted---Appellate Court's order was set aside and Court was directed to decide afresh restoration application in accordance with law. Ram Saran Das v. Nathwa and others AIR 1919 Lah. 276 and Salamat Bibi and others v. Settlement and Rehabilitation Commissioner, Multan PLD 1966 SC 467 ref. JUDGMENT This is an appeal against an order of the lower appellate Court dated 29-9-1984 by which it declined to restore the appeal dismissed by it for default in appearance on 31-10-1983. It was succeeded on the short ground that the appellant was not allowed an opportunity of establishing the allegations made in the restoration application. This view was supported by a judgment of this Court in Ram Saran Das v. Nathwa and others (AIR 1919 Lahore 276(2)). The appeal was fixed for, hearing, on 31-10-1983. The appellant was represented by an Advocate. The appellant was lodged in Jail. Therefore, his Advocate was to prosecute the appeal on his behalf. On the date fixed for hearing of the appeal, he once or twice appeared in Court when it was pre­occupied with its other judicial business. Eventually, the Advocate failed to enter appearance and the appeal was dismissed towards the closing hours of the Court time. On the following day, an application for restoration of the appeal dismissed for default in appearance on the preceding day was filed by the Advocate himself wherein he gave the account of the circumstances leading to his default in appearance before the Court and dismissal of the appeal on this score. Presumably, he gave his own affidavit in support of the restoration application. Learned…

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