BRAHMA SWAROOP Vs. SHAMSHER BAHADUR

JUDGEMENT

(1.) This is a defendants' second appeal from a decree for damages in the sum of Rs. 50/- and injunction restraining the appellants from demolishing a wall A B as shown in the plaint map. The trial court had dismissed the suit and the decree under appeal was passed by the court, of the Civil Judge, Rampur on 26th Mar., 1981, on appeal from the trial court's decree, after rejecting the application moved on behalf of the defendants, who were respondents in the appeal before the lower appellate court, by their counsel for adjournment of the hearing of the appeal, on the ground that he was busy in other cases and was unable to attend that court on that day.

(2.) The lower appellate court's order rejecting the application for adjournment runs thus : "25-3-81 : Sri K. Chandra for appellant. The respondent who was present a little while ago is absent now. 12-D is an adjournment application by the counsel for the respondent stating that he is busy in other courts and he is unable to attend this court. Opposed. Order XVII 1 empowers the court to grant adjournment on showing sufficient cause, provided that the fact that the pleader of a party is engaged in another court shall not be a ground of adjournment, Thus ground stated in the adjournment application is not sufficient cause 12-D is rejected. Proceed ex parte. Heard. Judgment OB 26-3-81. Sd/- Illegible 25-3

(3.) It is surprising, that Sri K. K. Singh. Civil Judge of Rampur who passed the above order on 25th March, 1981, did not notice that Order 17 of the Civil P. C. applies to the original trial of a suit, and not to the hearing of an appeal from the trial court's decree in a suit The procedure for hearing of an appeal is prescribed by Order 41 of the Civil P. C. and Rule 1 of Order 47 referred to by the learned Civil Judge does not in any manner control the adjournment of the hearing of an appeal from a decree by a court of appeal,