NINGAPPA NARSINGAPPA HAVALDAR Vs. CHANDRA JAKKAPPA HAVALDAR

JUDGEMENT

(1.) THIS is a revisional application by the appellants in an appeal which was pending before the First Class Subordinate Judge with Appellate Powers at Belgaum. The appeal was filed by the present applicants and it was fixed for hearing on September 7, 1940. Before that date a notice was served on the appellants on August 2, for depositing the costs for the preparation of the paper-book of the appeal. According to the circular issued by the High Court those costs were to be deposited within a month from the date of the service of the notice, and the last date of the deposit was, therefore, September2. As the amount was not paid on the due date, the appeal was dismissed on the next day, i.e. September 3, for want of prosecution. There is nothing to show whether the parties or their pleaders were present in the Court on: that date. Thereafter, on October 1, the appellants applied to the Court to restore the appeal on the ground that the costs for the paper-book were not deposited on account of a bona fide mistake. The learned Judge, however, was of the opinion that that application could not be presented, to the Court under Order XL1, Rule 19, of the Civil Procedure Code, 1908, nor were the appellants entitled to invoke the help of the inherent jurisdiction of the Court under Section 151. He was further of the opinion that according to the High Court Circular No.1257 of 1940 if the deposit was not made within one month, from the date on which notice had been given, the appeal was liable to be dismissed for want of prosecution. He, therefore, felt bound to dismiss the appeal. He says that he could not grant the appellants' request and thus act contrary to the strict rule made by the High Court.

(2.) THE circular issued by the High Court is not so strict as the learned Judge supposes. What the rule says is that the appeal shall be liable to be dismissed and not that the appeal shall be dismissed. THE circular does: contemplate that the Court has power in proper circumstances to excuse the delay. In my opinion, therefore, the learned Judge erred in thinking that he had no power to go- into the question as to whether there was sufficient reason for not depositing the costs on the due date. THE circular issued by the High Court has not the effect of a rule under the Civil Procedure Code as held in Dayanand Pandurang v. Daji Narayan (1926) I.L.R. 50 Bom. 793, s.c. 28 Bom. L.R. 1082. But even so, the circular as it is worded does not make it obligatory on the Judge to dismiss the appeal without leaving any option to consider the merits of the reason for not depositing the costs.