BHOPAL RAM Vs. MEHTA DHANPAT SINGH

JUDGEMENT

(1.) THESE two appeals are inter-connected and arise from the same proceedings. Appeal No. 2/1955 arise out of the order of Divisional Commissioner, Bikaner dated 4-11-54 against an order of the S.D.O. North, Bikaner in a rent suit. When the appeal came up for hearing before the learned commissioner on 19-10-54, the counsel for the appellant asked for an adjournment which was granted on payment of Rs. 25/- as costs to the respondent and the case was adjournment to 3-11-54. On 4-11-54, when the case was next taken up for hearing,the counsel for the appellant expressed his inability to pay the costs to the respondents as he had not been able to contact his client. Thereupon the learned Commissioner dismissed the appeal on the ground non-payment of costs. The appellant then applied on 22-11-54 for restoration of the appeal. This was rejected by the learned Divisional Commissioner on 29-12-54 observing that sufficient grounds for restoration did not exist. The second appeal No. 1/-1955 has been filed against this order.

(2.) WE have heard the learned counsel for the parties and have also examined the case, A perusal of the order of the Commissioner dated 9-12-54 by which the appeal was adjourned clearly shows that the payment of costs was not made a condition precedent to the hearing of appeal on the next date of hearing. It was simply stated that "for seeking an adjournment the appellant shall pay Rs. 25/- as costs." It is also significant to note that the date fixed for the hearing was 3-11-54. The order-sheet does not show as to why the case was not taken upon this date. It appears however that the case was taken on 4-11-54 when it was dismissed as observed before. Rule 34 of the Rules made under Sec.8 of the Rajasthan Revenue Courts Procedure and Jurisdiction Act which is identical with Order 17, Rule 1 of the C.P.C. is clearly applicable to this case. It is clear that under the order of the Commissioner the case was adjourned on payment of costs it was not made a condition precedent to the hearing on the next date. The Commissioner was therefore not justified in dismissing the appeal on 4-11-54 as the adjournment was not conditional to the payment of costs. The learned counsel for the respondent conceded before us that he could not show any ruling or law to support the order of the learned Divisional Commissioner. In the circumstances, the appeal is allowed the order of the learned Divisional Commissioner is set aside, the appeal is remanded to him for decision on merits. As appeal No. 1 is only for setting aside the order refusing to set aside the order dated 4-11-54 it has become infructuous and it is automatically disposed by the order passed in appeal No. 2.