Restoration of appeal despite merits dismissal in absence, where sufficient cause for non-appearance is shown under Order XLI Rule 19 CPC.

An appeal dismissed in the appellant's absence may be restored under Order XLI Rule 19 CPC read with Section 151 CPC where sufficient cause for non-appearance is shown and the explanation is bona fide. A dismissal recorded on merits, by itself, does not bar restoration if the absence was inadvertent and unintentional and the party seeks recall so the appeal can be heard on merits. On that basis, the restoration request was held maintainable and the refusal to restore was unsustainable.

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Issues: Whether the appeal dismissed in the absence of the appellant could be restored under Order XLI Rule 19 of the Code of Civil Procedure, 1908 read with Section 151 of the Code, and whether dismissal of the appeal on merits in the absence of counsel barred such restoration.

Analysis: The application for restoration disclosed the reasons for non-appearance, and the factual explanation was not found to be false or incorrect. The absence was inadvertent and unintentional. A dismissal recorded on merits, by itself, did not preclude restoration where the party showed a proper explanation for non-appearance and sought recall so that the appeal could be heard on merits.

Conclusion: The restoration application was maintainable and ought to have been allowed. The order refusing restoration was unsustainable, and the Second Appeal was directed to be restored.

Ratio Decidendi: A dismissal of an appeal on merits in the absence of the appellant does not, by itself, defeat restoration when sufficient cause for non-appearance is shown under Order XLI Rule 19 of the Code of Civil Procedure, 1908.

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