RAMA VANTI Vs. BAL KAUR

JUDGEMENT

(1.) THIS appeal under Clause 10 of Letters Patent is directed against the order of a learned Single Judge, dated January 14, 1966, dismissing in limine an application of the Appellant under Order 41 Rule 19 of the Code of Civil Procedure for restoration of her Execution First Appeal No. 358 of 1963, filed by her through Shri Durga Dass Khanna who was at that time practising as an Advocate of this Court. The appeal was admitted on October 21, 1963. When it reached for final hearing on August 5, 1965, it was found that the Appellant was not represented, as her counsel had in the meantime been appointed as Chairman of the Punjab Legislative Council. Gurdev Singh, J., before whom the appeal had been listed, therefore, directed that a notice for an actual date be issued to the Appellant to appear and prosecute the appeal. Though the Appellant had given her address not only in the memorandum of parties filed with the execution first appeal, but throughout this litigation as that of 2/7 West Patel Nagar, New Delhi, the A. D. notice postcard was addressed to her at R -102, West Patel Nagar, New Delhi. The postcard, dated August 12, 1965, which was issued for the actual date hearing fixed for September 17, 1965, was received back undelivered to the addressee. When the case came up for hearing before Gurdev Singh, J., again on September 30, 1965, in the above situation, the above -said notice had not yet come back and the case was, therefore, adjourned to October 11, 1965, for enquiry from the postal department. It was further directed by the learned Judge that in the meantime a fresh notice for that date may be issued to the Appellant by registered post. Unfortunately, however, the fresh notice was again issued to an address which reads as R -102, West Patel Nagar, New Delhi, which was admittedly never the address of the Appellant. The case having been listed for hearing on October 11, 1965, actually reached hearing on October 15, 1965, before Mahajan, J. Since no one appeared for the Appellant, the appeal was dismissed by the learned Judge for default of appearance without any order as to costs in the presence of the counsel for the Respondent.

(2.) ACCORDING to the Appellant, she happened to come to Chandigarh on November 12, 1965, and on enquiry came to know that her appeal had been dismissed in default. Thereupon she filed Civil Miscellaneous 2295 -C of 1965, on November 15, 1965, under Order 41 Rule 19 of the Code of Civil Procedure for readmission of the appeal. In the application which was duly supported by the affidavit of the Appellant, she had stated that the appeal had been put up for hearing without any of the notices ordered by Gurdev Singh, J., having been served on her and that the notices issued by the Office of this Court had been sent to a wrong address, as would be evident from the addresses given on the notices compared with the address of the Appellant given on the memorandum of parties in the execution first appeal. The Single Judge of this Court before whom this application came up for hearing dismissed the same in limine by order, dated January 14, 1966. Aggrieved by the same, the Appellant has preferred this appeal.

(3.) THIS appeal has been contested by the Respondent. Her learned Counsel Shri Ram Rang has not been able to question any of the facts stated above, but has merely argued on the authority of the Lahore High Court in the Hanuman Chamber of Commerce Ltd., Delhi v. R.B. Seth Jassa Ram -Hira Nand, 1947 P.L.R. 230, that in a Letters Patent appeal interference with the exercise of discretion by a learned Single Judge should not be resorted to unless the discretion is found to have been exercised arbitrarily. Counsel is no doubt right in his submission, but the argument has no application to the present case as Rule 19 of Order 41 of the Code, which is quoted below, does not vest any discretion in a Court: