RAJA RAM DAYALU Vs. VIMLA RANI

JUDGEMENT

(1.) THIS application prays for the setting aside of the order dated December 16, 1974 whereby the appeal was dis missed under Chapter XII, Rule 4 of the Rules of Court against some of the respondents for the failure of the appellant to take the neces sary steps to serve the said respondents. Shri B. N. Srivastava, learned counsel for the appellant, has moved this application on the ground that his son got burnt at about 9.00 a.m. on December 16, 1974. Hence, he could not attend the Court and the appeal which was list ed under Chapter XII, Rule 4 was in consequence dismissed against some of the respondents under the said provision. An affidavit in support of the application has also been filed. It is not necessary to go into the sufficiency or otherwise of the cause shown as, in my opinion, the Court has no power to set aside an order passed under Chapter XII, Rule 4 of the Rules of Court. This rule lays down as under:

(2.) NOW , it is obvious that it is an imperative provision and leave no discretion in the Court to grant time to the appellant to take steps. When the case is listed under Chapter XII, Rule 4 the Court is bound to dismiss the same unless an application of the type mentioned in the said Rule is presented when the case is called up. When this is the position, in my opinion, setting aside the order under Chapter XII, Rule 4 and restoring the appeal will mean that what cannot be directly done by the Court can be indirectly done by it. In other words, even though the Court cannot grant time for taking steps when the case is listed under Chapter XII, Rule 4 it can grant such time to the appellant indirectly by first dismissing the appeal under the said provision and thereafter restoring the same on a subsequent application. In my opinion, the phraseology of Rule 4 militates against such an interpretation. In this view of the matter, I hold that this application is not maintained and it is accordingly re jected.