BHURA Vs. NATHULAL

JUDGEMENT

(1.) DURING the pendency of a second appeal filed by Bhura against Nathulal and others, an application was made on behalf of the appellant for correction of one of the names of the opposite parties. It was said that the name of Moolchand was written in the memo of appeal by mistake and in his place the name of Kapurchand should be entered. Notices were issued to the opposite parties of the aforesaid application and the case was listed for orders before the court on the 7th of August 1950. On that date nobody appeared on behalf of the appellant for some reason or the other. Mr. Sanghi appeared on behalf of the opposite parties Nos. 1 and 2 and the court dismissed the appeal instead of rejecting the amendment application. An application was then filed for restoration of the appeal after about four months. The office note was made that the application was barred by Article 168 of the Indian Limitation Act, butt as the appeal was not listed for hearing on the 7th of August 1950, when it was dismissed for default, notices were issued to the other side in view of this circumstance. Mr. Sanghi, who has appeared on behalf of two of the opposite parties has contended that the application is time-barred under Art. 168 of the Indian Limitation Act.

(2.) AS the case had not been listed for hearing on the 7th of August 1950, in our opinion the order of dismissal of the appeal for default could not have been made on that day. Probably, it was under a mistake that the aforesaid order was made. Under sec. 151 of the Civil Procedure Code such a mistake can be corrected in the interest of justice. A party should not be made to suffer on account of a mistake of the court. It was laid down in Gadadhar Surkhel vs. Gopal Chandra Das and cthers (1) (A. I. R. 1936 Cal. 343.) - "it is an established principle that where rights of third parties have not intervened it is not only in the power, but it is the duty of the court to relieve a party of the injury done to him by it by reason of its mistakes and defaults or mistakes and defaults of its officers inadvertently committed. Actus curiae neminem gravabit. "