LAWS(PVC)-1923-10-65

R C KRISHNASWAMI NAIDU Vs. PCHENGALROYA NAIDU

Decided On October 05, 1923
R C KRISHNASWAMI NAIDU Appellant
V/S
PCHENGALROYA NAIDU Respondents

JUDGEMENT

(1.) This is an appeal from an order of the Sub ordinate Judge of Chittore, dated 23rd September, 1921 re fusing to set aside an order dismissing an appeal dated 4 March, 1921.

(2.) The facts are that the petitioner being the appellant in the appeal before that Court instructed a Vakil to appear and conduct his appeal. We will assume on the evidence before the Court that this Vakil did not appear on 4 March, 1921, to conduct the appeal in pursuance of his instructions by reason of the Vakil having taken up the attitude of non-co- operation with the Courts and we will also assume that the appellant did not come to know of the order of the Court dismissing his appeal until sometime after it was dismissed and that he took immediate steps on making the discovery to bring the matter before the Court. Assuming these facts to be correct, the appellant has suffered grave injustice, for his appeal, for no fault of his own, has never been heard although it may be that he has a remedy against his Vakil for negligence. Under Order 41, Rules 17 of the Civil Procedure Code, "if on the day fixed the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed," and under Rule 19 where the appeal is so dismissed, "the appellant may apply to the appellate Court for the re-admission of the appeal; and where it is proved that he was prevented by a sufficient cause from appearing when the appeal was called on for hearing, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit." These rules provide a remedy in a case like the present for having the appeal re-admitted. But by Art. 168 of the Limitation Act, IX of 1908, an application for the re-admission of an appeal dismissed for want of prosecution must be brought within 30 days from the date of the dismissal. It, therefore, follows that, if the Court is confined to acting under Order 41, Rule 19, this application is statute barred.

(3.) It is, however, contended that the Court has an inherent power under Section 151, C.P.C., or otherwise, to reinstate an appeal under such circumstances. There are two authorities quoted in support of that proposition - Debi Baksh Singh V/s. Habib Shah (1913) I.L.R. 35 All. 331 and Sonu Bai V/s. Shiwaji Rao (1920) I.L.R. 45 B. 648. In the former the Privy Council acted under Section 151, C.P.C., in a case where a suit was dismissed for non-appearance, the plaintiff being dead and the Court being unaware of that fact, and their lordships say, "The principle of forefeiture of rights in consequence of a default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead or the ranking of death under the category of default does not seem to be very stateable." Their Lordships in effect, held that the Court had made a mistake in thinking that the plaintiff was alive, that the plaintiff or appellant could not be said to have not appeared or to have defaulted in appearing when he was no longer alive, that, therefore, that was a case to which the rules did not apply and that the Court, to do justice, could fall back on its inherent powers.