MUSALIARAKATH MUHAMAD ALIAS BAVA Vs. MRRYMANAVIKRAMA THE ZAMORIN RAJAH AVERGAL REPRESENTED BY THE COURT OF WARDS AGENT AND ESTATE COLLECTOR KSRINIVASA RAO AVL

JUDGEMENT

(1.) Appellant (and petitioner before us) was the 5 defendant in O.S. No. 354 of 1917 on the file of the Court of the Additional District Munsif of Tirur which was decreed in favour of Plaintiff, He preferred an appeal which was posted for disposal before the Subordinate Judge of Palghat on 10 February 1920. On that date, as appears from the record appellant was not present but a vakil Mr. V. Sivarama Panikkar holding vakalat from him was present in court and applied for an adjournment (M.P. No. 378 of 1920). This was refused. As far as I can gather, he seems to have then simply informed the court that as he had no instructions or papers, he could not argue the appeal and to have taken no further part in the proceedings. In these circumstances the Subordinate Judge instead of at once dismissing the appeal for default under Order 41, Rule 17 considered the evidence bearing on appellant's claim with reference to his appeal memorandum (1 use his own words) and dismissed the appeal with costs.

(2.) Mr. K.P.M. Menon contends that it was not competent to the court to inquire into the merits of the case in the absence of appellant and his pleader; but only to deal with it under Order 41, Rule 17 against an order under which he would have right of application for re- admission under Rule 19.

(3.) I think in the circumstances set out above we cannot distinguish the case from one in which the appellant was absent and entirely unrepresented. To all intents and purposes he was unrepresented for it is clear that Mr. Sivarama Panikkar was only instructed to apply for an adjournment and was in no position to pretend to argue the merits of the appeal. As appears from the order on M.P. No. 378 of 1920 he had not studied the appeal and had been given no papers. The case is precisely similar to that in Satish Chandra Mukerjee V/s. Ahara Prasad Mukerjee I.L.R. 34 Cal. 403 in which a full Bench of the Calcutta High Court held that the party must be deemed to be unrepresented.