JAGDISH PRASAD Vs. GOKARAN NATH SRIVASTAVA

JUDGEMENT

(1.) This Is an application for setting aside of an order dated 30.9.2004, rejecting the memorandum of second appeal. The Stamp Reporter had given a report that the memorandum of appeal was defective as the substantial questions of law were not framed therein and the valuation of the suit and appeal was not disclosed. It appears that on 11.8.2004 two weeks time was granted to the appellants to remove the defects. The defects however were not removed and the case was listed on 30.9.2004. On that date neither the counsel for the appellants appeared nor the defects had been removed. The Court then passed the order dated 30.9.2004 rejecting the memorandum of second appeal.

(2.) In the present application it is stated that the case was not marked on the cause list and the appellant's counsel could not therefore appear and even the defects could not be removed. A counter-affidavit has been filed by the respondents in which the stand is that the counsel of the respondents had informed the appellants' counsel about the court's order dated 11.8.2004, granting time to remove the defects. A supplementary-affidavit has been filed today by the appellant in which it is stated that on receiving the letter of the respondents' counsel the appellants' counsel had sent a letter to the appellants seeking information about the valuation of the appeal but the said letter was not delivered to the appellants and consequently the defects could not be removed for want of information of the valuation of the suit and of the appeal. The copy of the supplementary-affidavit has been served upon Sri Radhey Shyam, learned Counsel for the respondents and he states that on facts he does not want to file any reply controverting the stand taken in the supplementary-affidavit.

(3.) The submission of Sri Radhey Shyam is that the application for recall of the order dated 30.9.2004 is itself not maintainable as it was the memorandum of appeal, which was rejected and Order XLI, Rule 19, C.P.C. under which provision the application has been filed is not applicable to such an order as the appeal has not been admitted and the only remedy the applicant has is under Order XLVII. Rule 1 of the C.P.C. to file a review. In support of his contention reliance is placed upon the decision of the Patna High Court in Sirdar Singh and Ors. v. F.F. Christian AIR 1920 Pat 608. It was held in that case that an order rejecting the memorandum of appeal on the ground that it is insufficiently stamped, is open to review under Order XLVII and no application for restoration of the appeal can in such a case be made under Order XLI, Rule 19, C.P.C. Sri Radhey Shyam also placed reliance upon Suraj Pal Pandey and Ors. v. Uttim Pandey and Ors. AIR 1922 Pat 281. In this case it was held that an order rejecting the memorandum of appeal for failure to pay deficit court fee Is a decree and that no application for restoration under Order XLI, Rule 19, C.P.C. is maintainable. It is to be noted that the Patna High Court in neither of the aforesaid cases noticed the provisions of Section 151, C.P.C. The Court in exercise of its inherent power and to do justice can always pass orders, which will promote the cause of justice.