SUDHANGSHU MOHAN DUTTA Vs. BELA RANI PAUL

JUDGEMENT

(1.) This is an application under S.115 of the Code of Civil Procedure, for short, "the Code", directed against the Order dated 21-12-1981 passed by the District Judge, Dibrugarh, in Title Appeal No. 1 of 1981, dismissing the appeal of the petitioner-defendant for appellant's default.

(2.) In the Title Appeal preferred by the petitioner, Shri L. Hazarika, a just engaged lawyer filed an application on 21-12-1981, the date on which the appeal was posted for hearing, praying that he required 15 days time to prepare and argue the case. It was stated in the petition that, Shri Biman Barua, Advocate who had filed the appeal, left the charge of the case expressing his inability to argue the case on 21-12-1981 on some personal ground. Shri L. Hazarika, learned counsel categorically stated that he was engaged only on 21-12-1981 and he could not prepare the appeal after going through the papers. The prayer was turned down and the appeal was dismissed for non-prosecution, when learned counsel Shri Hazarika fairly conceded that he was not in a position to argue the appeal on that date.

(3.) It emerges clear that Shri Biman Barua, Advocate had left the charge of the case and the petitioner-appellant had to engage Shri L. Hazarika to argue the appeal. Under this thorny circumstance, it is hardly possible to blame the appellant-petitioner, as he did everything possible to engage a lawyer had left the charge of the appeal. (Sic) Similarly, by no means it can be said that the prayer of Shri Hazarika to grant him a short adjournment was unjust or unreasonable. In fact, learned District Judge did not reach the conclusion that either the appellant was blame worthy or learned counsel Shri L. Hazarika had asked for adjournment without rhyme or reason. There is no inkling in the impugned order as to why the appeal could not be adjourned for a short period. As learned counsel informed the court that he was not prepared to argue the case on that date, learned Judge dismissed the appeal holding that the appellant did not appear when the appeal was called on for hearing.