DHANNA Vs. SHER MOHAMMAD

JUDGEMENT

(1.) THIS appeal involves the questions as to the proprety of an order dismissing an appeal for non -prosecution.

(2.) THE material facts are that the Defendant -Appellants had preferred an appeal in the Court of District Judge Ujjain against the decree granted by the trial Court in favour of the Plaintiff Respondent Shermohammad. This appeal was fixed for hearing on 10 -1 -1961. The case was called first at 11 A.M. when the Appellants were absent as also their counsel. The appellate Court waited for some time when at 11.20 A.M. the Appellants' counsel Shri Shantiswarup appeared. It appears that the Court then must be busy with other work. Mr. Shantiswaroop waited for one or two minutes and then went away. The case was later again called number of times upto 11.50 A.M. when Shri Shanti swarup again appeared and expressed before the Court his difficulty that his clerk had not come with the brief. The Court agreed to wait up to 12 noon. The conunsel did not appear till 12.10 P.M. He then came and requested for an adjournment. This was refused and the appeal was dismissed for non -prosecution. The Appellants then applied under Older 41 Rule 10 C. P. Code. -for restoration of the appeal as having been dismissed for default alleging that the clerk of Shri Shantiswaroop fialled to get accommodation in the bus and he was consequently delayed and a prayer for adjournment had been refused. The application was opposed on the ground that the same was not maintainable in law. The learned District Judge thought that the dismissal should have been under Order 41 Rule 11 (2) C. P. Code in order to attract the procedure of restoration under Order 41 Rule 19 C.P. Code. He held that in as much as the dismissal of the appeal was not for failure of the Appellants to appear since their counsel. Shri Shantiswaroop was present at the hearing, power under Order 41 Rule 19 C. P. Code could not be exercised. The learned Judge went on to suggest, though quite unnecessarily, that the proper remedy was by way of an appeal. The application was consequently dismissed.

(3.) ON the other hand it is contended on behalf of the Respondent that the order of dismissal in this case is distinctly not for nonappearance of the Appellants but for non -prosecution. Such an order is not without jurisdiction as it is capable being passed under the Court's inherent powers. In that event an application for restoration under Order 41 Rule 19 C. P. C. is not competent. The application for restoration, it is submitted, wrongly mentioned Order 41 Rule 90 C. P. C. as the provision under which the power of restoration could have been exercised by the Court although the Court below read it as meaning Order 41 Rule 19 C. P. Code.