MADHUSUDAN DHAL Vs. GAYA PRASAD GIRI

JUDGEMENT

(1.) This is a defendant's appeal under Order 43, Rule 1 (t) of the Civil P. C. challenging the order dated 5-8-78 of the District Judge, Mayurbhanj, refusing to re-admit Title Appeal No. 22-M of 1974 on his file on an application under Order 41, Rule 19 of the Code.

(2.) Title Appeal No. 22-M of 1974 was filed by the appellant against the judgment and decree of the learned Subordinate Judge of Baripada, in Title Suit No. 59 of 1972. On 23-8-77 the appeal was made ready for hearing and was directed to be called on 21-9-77 for the purpose. Thus 21st Sept. 1977 was the first date of hearing. On that day the following order was made:--

(3.) P. W. 1 has categorically said that the appellant had come and taken the brief from him with a view to engaging Mr. Patnaik at Cuttack. There is clear evidence of both the witnesses that on 21-9-77 the appellant was present in the court. His son had come to Cuttack to take Mr. Patnaik. The learned appellate Judge has made use of the fact that there was discrepancy as to when Mr. Patnaik was briefed. While the appellant's local Advocate P. W. 1 stated that it was about 2-3 weeks before the date of hearing, the appellant as P. W. 2 had indicated that Mr. Patnaik had been briefed from the point of time when the appeal was filed. In the absence of any evidence to the contrary there is no justification to disbelieve the fact that Mr. Patnaik had been briefed to argue the appeal whether from the time of preferring of the appeal or a few weeks before the actual date of hearing. Though the appeal was already three years old, it had been made ready only a few days before the date on which it had been dismissed. In 'fact, as already indicated, 21st Sept. 1977 was the very first date of hearing. If an adjournment was asked for on the very first date of hearing, the learned appellate Judge, particularly when he had been told that an Advocate from Cuttack had been briefed to argue the appeal, should not have adjourned the appeal by a day. Judicial notice can be taken of the fact that the distance between Baripada and Cuttack is about 136 miles. Communication had to be sent to the Advocate at Cuttack and he had to make his arrangements to go to Baripada. The learned appellate Judge in these circumstances should have given reasonable time for the appellant to come with his Advocate for the hearing of the appeal. In the facts of the case, I am inclined to think that the learned appellate Judge went wrong in refusing to readmit the appeal.