second appeal

Hi Sunny, I'm Adv Niharika and here is my take on your query.

Prima facie the case is over as the restoration period of 30 days has elapsed.

The Supreme Court in Abdur Rahman and others v. Athifa Begum and others 1996 (6) SCC 62 wherein it was held that High Court cannot go into the merits of the case when there was non­appearance of the appellant.

Also in another case namely Ghanshyam Dass Gupta v. Makhan Lal 2012 (8) SCC 745 the Supreme Court has reiterated the above legal position, “……..the Explanation to sub­rule (1) of Rule 17 of Order 41 CPC was added by Act 104 of 1976, making it explicit that nothing in sub­rule (1) of Rule 17 of Order 41 CPC should be construed as empowering the appellate court to dismiss the appeal on merits where the appellant remained absent or left unrepresented on the day fixed for hearing the appeal. The reason for introduction of such an Explanation is due to the fact that it gives an opportunity to the appellant to convince the appellate court that there was sufficient cause for non­appearance. Such an opportunity is lost, if the courts decide the appeal on merits in absence of the counsel for the appellant.”

I’m also attaching a latest Supreme Court judgment for your convenient reading onto the same matter in the case of Sri Prabodh Ch. Das And Anr. Versus Mahamaya Das And Ors.

https://main.sci.gov.in/supremecourt/2015/14897/14897_2015_14_1501_19139_Judgement_13-Dec-2019.pdf

I hope this information yields useful to you and in case of further query, you can reach me via email at niharikalohan@yahoo.com

Genrally appeal shall not be reopened after prescribed period, however, the Court can consider the facts / reasons for non-appearance on fixed date on its merit since Civil Procedure Code, 1908 is diretory and not mandatory. 

The stattutory period is 30 days, but the appelant can file for restoration of appeal even after that by showing enough reson for delay in filing the apllication.