KAWLESHWAR SINGH Vs. RAGHUBIR SINGH

JUDGEMENT

(1.) This is a miscellaneous first appeal by the persons who were appellants in the lower appellate Court in Money Appeal No. 10/5 of 1959. The said appeal was pending before the District Judge on 4-7-1959, on which date it was adjourned to 10th August, 1959. In the meantime under the administrative order of the District Judge the appeal was transferred to the court of the Second Subordinate Judge for disposal, on the 24th July, 1959. It was taken up on the 10th August, 1959. Nobody appeared on behalf of the appellants in spite of repeated calls. The lawyer for respondent No. 1 was ready and it was heard. The appeal was disposed of on merits. It was practically dismissed with a slight modification. The appellants filed an application on 8th September, 1959 under Order 41, Rule 19 of the Code of Civil Procedure for its restoration alleging that appellant No. I1 fell ill on the 8th August, 1959, and was ill till the 17th August, 1959 and appellant No. 2, the only remaining appellant^ had gone to some of his relation and was not present in village to come to court. The court below has not accepted the case of the appellants and has refused to restore the appeal.

(2.) In support of this appeal Mr. B. P. Rajgarhia first attempted to persuade me on the question of fact. He took me through the evidence of witnesses examined on behalf of either party and submitted that the evidence adduced on behalf of the appellants ought to have been believed and it ought to have been held that the appellants were prevented by sufficient cause from appearing when their appeal was called out for hearing. Having examined every thing, I do not find any substance in the argument put forward on behalf of the appellants. In my opinion the lower appellate court has rightly held that the appellants have failed to make out any sufficient cause for restoration of the appeal. Appellant No. 1 did go to attend a criminal court on the 12th August, 1959, although according to the certificate granted by the Vaidya (A. W. 2) he was lying ill in the bed from the 8th August till the 17th August, 1959 and was not moving about. There was no satisfactory evidence, except the evidence of A. W. 1, to convince the court that appellant No. 2 was not available to come to court and do pairvi in the appeal. In my judgment, therefore, the application under Order 41, Rule 19 of the Code of Civil Procedure has rightly been dismissed on merits.

(3.) Learned Counsel raised a technical point in support of this appeal. His submission is that in default of the appellants the appeal ought not to have been decided on merits on the 10th August, .1959. The court either ought to have adjourned the hearing of the appeal or ought to have dismissed it for default under Rule 17 of Order 41 of the Code of Civil Procedure. It had no jurisdiction to dismiss it on merits. In support of this view reliance is placed upon the cases of Basudev v. Bideshi, AIR 1929 Rang 11 (2), Talker Sheikh Chowkidar v. Otrauddi Hawaldar, AIR 1929 Cal 475, Digendra Chandra v. Radha Ballav, AIR 1953 Assam, 191 and Musaliarakath Muhamed v. Manaviakrama, ILR 45 Mad 882 : (AIR 1923 Mad 13). A somewhat contrary view seems to have been taken by a learned single Judge of this Court in the case of Daulat Singh v. Kesho Prasad Singh, AIR 192l Pat 325. I respectfully agree with the view expressed in the other cases and since the decision of this appeal is not dependent upon this question, it is not necessary to refer this case to a larger Bench simply because I find myself with utmost respect not in agreement with the view expressed in the Patna case. Even after accepting the contention put forward by the learned Advocate, I am of the view that the effect of the order passed on the 10th August, 1959 would be dismissing the appeal for default. The order was so treated by the appellants themselves when they filed an application under Rule 19 of Order 41 of the Code of Civil Procedure for restoration of their appeal. In the proceeding started under Order 41, Rule 19 the only question, therefore, was as to whether the appellants were prevented by sufficient cause from appearing when the appeal was called out for hearing. The appellants have failed to make out any sufficient cause. The order dated the 10th August, 1959, therefore, in effect, which is an order dismissing the appeal in default, remains and cannot be recalled. It cannot be recalled in this proceeding on the ground that the appeal ought not to have been dismissed on merits. I find some support to this view from tile judgment of Mr. Justice Oldfield in the case of Srinivasa Ranga Row v. Raja of Karvetinagar, AIR 1915 Mad 1111. The view expressed by Mr. Justice Tyabji is a different one, but that is on the facts of that case where it is important to notice that the learned single Judge of the High Court, who dismissed the appeal for default under the rules of the High Court had no power to dismiss it under Rule 17 of Order 41 of the Code of Civil Procedure. Here the appellate court had power to dismiss the appeal for default under the said provision of law and in my judgment, therefore, this technical point raised on behalf of the appellants is also devoid of any substance. In the result, the appeal fails and is dismissed, but on the facts and in the circumstances of the case I would make no order as to costs.