SHANKER Vs. BAHADUR LAL MISTRI AND ANR

JUDGEMENT

(1.) This is a Plaintiff's appeal. The Plaintiff sued for a declaration that he was the owner of a certain house. The suit was dismissed by the trial court. He filed an appeal in the lower appellate court. On the date of the hearing the Appellant was present, but his counsel was absent as he had fallen ill. When the case was taken up at 11 a.m., the court was not inclined to adjourn the case and asked the Appellant to make arrangements for the case to be argued by some other counsel. He was unable to make any arrangement. When the case was again taken up, he made an application for adjournment which was refused and then the following order was passed by the court: The appeal is dismissed for default.

(2.) The cross-objection is also dismissed. The Plaintiff applied for restoration of the appeal, but the application was dismissed on the ground that since the Appellant was personally present on the date of the hearing, the order dismissing the appeal for default should be construed as having been passed on merits. The Plaintiff had now come up in second appeal against the order dismissing the appeal for default.

(3.) As the order under appeal has to be construed as an order dismissing the appeal on merits, a second appeal, of course, lies. The question is whether the order should be set aside. It appeals that when the application for adjournment of the appeal was made by the Plaintiff, the other side stated that he had no objection to the adjournment. The allegation, therefore, that the Appellant's counsel was ill, was not challenged. In these circumstances, the lower appellate court should have adjourned the hearing of the appeal, it would be difficult to prepare another counsel immediately and the order refusing to adjourn the case was not a proper order to be passed in the circumstances of the case.