ANADI NATH Vs. SUDANGSHU

JUDGEMENT

(1.) A suit for mesne profit instituted by the plaintiff-opposite party against the defendant-petitioner having been decreed, the defendant preferred an appeal and while allowing the appeal and sending the case back on remand to the trial court for retrial, the appellate court ordered that if the defendant-appellant fails to take steps for examining the Pleader Commissioner within two weeks from the receipt of the record in the trial court, "the appeal shall stand dismissed on contest with costs to the respondent". The record reached the trial court on 23-4-84 and the trial court directed the defendant-petitioner to take steps by 30-4-84 for summoning the Pleader Commissioner. On 30-4-84, however, the defendant filed an application before the trial court for extension of time for the purpose of summoning the Pleader Commissioner on the ground of illness of the defendant and the trial court allowed the application in the presence of the plaintiff-opposite party and extended time by fixing 24-5-84 for taking such steps. On that date the defendant came to the trial court for taking steps as directed by the order of the trial court passed on 30-4-84, but came to know that the trial court on 7-5-84 sent the record back to the appellate court, after passing the following order : "No step taken by the defendant in accordance with the order passed by Hon'ble appeal court. Hence, the appeal is liable to be dismissed as per order of the Hon'ble A.D.J. Therefore send the record to the Ld. 10th Court of A.D.J. for passing necessary dismissal order".

(2.) On further enquiry thereafter, the defendant came to learn that the appellate court on 25-5-84 passed the following order dismissing the appeal :- "The Court below has informed by his Memo No. 179 D/-15-5-84 that the appellant failed to take steps for examining the Pleader Commissioner within the time specified in the judgement, i.e., within 2 weeks from the date of receipt of the record there. In view of the direction made by this Court in the judgement passed on 5-4-84, the appeal stands dismissed with costs to the respondent".

(3.) Thereafter the defendant-petitioner filed an application under S.151, Civil P.C., before the appellate court for passing necessary order giving the defendant an opportunity to examine the Pleader Commissioner after setting aside the orders of the trial court D/-7-5-84 and of the appellate court D/-25-5-84. The appellate court by its order D/-20-12-84 has rejected the petition on the ground that it has "no jurisdiction to entertain the petition or to accord the relief sought for".