R C KRISHNASWAMY NAIDU Vs. RCHENGALROYA NAIDU

JUDGEMENT

(1.) This is an appeal from an order of the Subordinate Judge of Chittoor, dated 23rd September 1921, refusing to set aside an order dismising 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 the 4 March 1921 to conduct the appeal in pursuance of his instructions by reason of the Vakil having taken up the attitude of non- cooperation 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 oh 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 XLI, Rule 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 there-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 under Art. 168 of the limitation Act, IX of 19o8, an application for the re-admission for an appeal dismissed for want of prosecution must be brought within 30 days from the date of dismissal. It, therefore, follows that if the Court is confined to acting under Order XLI, Rule 19, this application is "Statute barred."

(3.) It is, however, contended that the Court has an inherent power under Section 151, Civil Procedure Code, or otherwise, to reinstate an appeal under such circumstances. There are two authorities quoted in support of that proposition, Debt Bakhsh Singh V/s. Habib Shuh 19 Ind. Cas. 526 : 35 A. 331 : 17 C.W.N. 829 : 11 A.L.J. 625 : 18 C.L.J. 9 : 13 Bom. R. 640 : 14 M.L.T. 33 : (1913) M.W.N. 566 : 25 M.L.J. 148 : 16 O.C. 194 : 40 I.A. 151 (P.C) and Sonubai Baburao V/s. Shivajirao Krishnarao 60 Ind. Cas. 919 : 45 B. 648 : 23 Bom. L.R. 110. In the former, the Privy Council acted under Section 15 Rule Civil Procedure Code, 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 forfeiture 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 statea e." 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 Courts, to do justice, could fall back on its inherent powers.