Jan - High Court of Judicature at Allahabad

102 INDIAN LAW REPORTS ALLAHABAD SERIES [2012that appellant is not responding, hencenotice be issued to the appellant.4. The court below, taking theservice of notice on the appellantsufficient through counsel, on08.07.1997 dismissed the appeal for wantof prosecution.5. It appears that an application wasfiled by the appellant thereafter, underOrder XLI, Rule 19 CPC, to re-admit theappeal along with an application forcondonation of delay. In the applicationit was stated that, at no point of time, thepetitioner/appellant was informed aboutthe transfer of the appeal before the courtbelow and the date fixed in the matter,and he came to know about the sameonly on 09.04.1999 when he had taken acopy of khatauni from the Lekhpal. It isalso stated that since 09.04.1999 to14.04.1999 the appellant was busy infiling objection in execution case of thesuit property, therefore could not file theaforesaid application.6. The lower appellate court, takingnote of the fact that the service of noticewas sufficient as the counsel had alreadyappeared, rejected the application forcondonation of delay. The learnedcounsel for the petitioner while assailingthis order has contended that once thenotice was issued to the appellant, aspecific report ought to have been therethat the notice issued by the court wasserved on the appellant. He has alsodrawn attention of the Court towards theprovisions contained in Order III, Rule 4(3) (b) CPC. In the submission of thelearned counsel for the petitioner, theservice of notice upon the counsel whowas appearing before the court below inthe suit proceeding was not sufficient, asthe appeal was filed before the HighCourt through different counsel, meaningthereby, the earlier Vakalatnamaexecuted in favour of the counselappearing in the suit proceeding has beenterminated. He has also submitted thatthere may not be sufficient explanationfor condoning the delay in filing theapplication under Order XLI, Rule 19,but on that count, the application shouldnot have been rejected.7. Refuting the submissions of thelearned counsel for the petitioner, ShriPradeep Kumar, learned counselappearing for respondent has submittedthat the provisions contained under OrderIII, Rule 4 (c) are mandatory in nature,and unless the vakalatnama i.e.authorisation to appear in the case isspecifically withdrawn or some order ispassed by the Court to that effect, thatwill continue and mere engagement ofanother counsel will not mean that theearlier counsel has been disengaged. Hehas also submitted that the petitioner hascontested the execution matter and filedobjection there and the objection wasrejected, and ultimately, the sale deedwas executed in favour of therespondent-plaintiff on 07.11.1998through court, and the plaintiffrespondenthas been in possessionthroughout thereafter. In the submissionof the learned counsel for therespondents, the writ petition lacks meritand deserves to be dismissed.8. I have heard Shri H.N. Singh,Ms. Anita Tripathi, Shri Sharat ChandraUpadhyay, learned counsel for thepetitioner and Shri Pradeep Kumar,learned counsel appearing for contestingrespondents and perused the record.