LAWS(CAL)-1955-4-8

MAHABIR CHANDRA GELADA Vs. SOHANLAL BOID

Decided On April 04, 1955
MAHABIR CHANDRA GELADA Appellant
V/S
SOHANLAL BOID Respondents

JUDGEMENT

(1.) This is an application to set aside an ex parte order of dismissal made on 24-2-1955. The application is made by the plaintiff. The suit appeared on the peremptory list for hearing on 24-2-1955. No one appeared on behalf of the plaintiff. It is now said in para 16 of the petition used in support of the notice of motion and in explanation of the non-appearance that the learned counsel engaged on behalf of the plaintiff was busy in another Court actually cross-examining a witness at the time when this suit was called on for hearing. The defendant's Counsel was present on that date, and it is alleged that he prayed for the dismissal of the suit. The suit was dismissed with costs to the defendant and certified for two Counsel.

(2.) It is unfortunate that only one counsel was engaged for the plaintiff in this case although the claim in this suit is for about Rs. 30,000/-. An Attorney who briefs one counsel for the hearing of a suit placed on the interlocutory Court which is not able to reach suits every day due to interlocutory applications, takes thereby a big risk in these matters, and it is necessary for this Court to express its opinion that on that ground alone of his counsel being busy elsewhere, it cannot always accommodate Attorneys specially when it is a matter which is certified as fit for the employment of two Counsel.

(3.) The merits of the case do justify in my view the setting aside of the order of dismissal on certain terms and conditions as to costs. For the fault of the Counsel, I do not think it will be in consonance with justice in this case that the plaintiff's claim should be defeated. At the same time, failure to arrange for his counsel to appear or failure to make arrangement for more than one counsel which has led to unnecessary costs being incurred by the defendant, must be compensated,