GANESH RAM Vs. BAIKUNTHESH PRASAD SINGH

JUDGEMENT

(1.) This appeal is presented against the order of the District Judge of Shahabad refusing to restore an appeal which had been dismissed for default.

(2.) The plaintiffs had brought a suit for redemption of a rehan bond alleging that they had deposited the amount in Count under Section 83, T. P. Act and had also caused a notice thereof Served upon the defendant. In spite of the service of notice the defendant refused to give possession of the land and the plaintiffs therefore claimed mesne profits for the period subsequent to the date of the deposit of the rehan money. The defendant contested the suit on the ground that the plaintiffs bad no right to redeem. The trial Court granted a decree for redemption but rejected the claim for mesne profits on ground that there was no evidence adduced to prove that plaintiffs had made the deposit on the alleged date. Against this decree the defendant filed an appeal. The plaintiffs filed a cross objection with respect to the claim for mesne profits which had been disallowed by the trial Court.

(3.) The learned Judge fixed 16-9-1947 for hearing the appeal, On that date counsel for the appellant stated that his client reached Arrah at 11 A. M. and so he was not ready So argue the appeal. Learned counsel asked for a short adjournment but the Court rejected the petition and also dismissed the appeal for default of the appellant. The Court heard the cross-objection of the respondents ex park and granted him a decree for mesne profits which should be ascertained in future proceedings. The defendant then applied under Order 41, Rule 19 for rehearing the appeal. The learned District Judge rejected this application on the ground that no sufficient cause was shown for the non-appearance of the appellant on the date fixed for hearing.