KUMAR GOPIKA RAMAN RAY Vs. MAHAR ALI

JUDGEMENT

(1.) This Rule was granted on an application for review of the order made by this Court on the 4 July 1922, in connection with Appeal from Original Decree No. 204 of 1919. The order was in these terms. Before Babu Dwarka Nath Chakrabarti proceeds to open this appeal, Babu Mahendra Nath Ray, on behalf of the adult tenant defendants, takes a preliminary objection that the appeal is incompetent and cannot proceed as against the tenant defendants, because some of the tenant defendants have died and no steps have been taken to bring their legal representatives on the record, and that from the nature of the reliefs sought the appeal cannot proceed as against the surviving tenant defendants. In reply, Babu Dwarka Nath Chakrabarti states that he intends to proceed against defendant No. 161 (proprietor) only. The appeal will therefore stand dismissed as against the tenant defendants (Nos. 1-160), both adults and infants.

(2.) The appeal was taken up for disposal on the 4 July 1922. Mr. Chakraburti, Mr. Guha and Mr. Sarbadhikary appeared on behalf of the plaintiff appellant. There were two sets of respondents, namely defendants Nos. 1 to 160 who were tenants and were represented by Mr. Ray, and Mr. Palit; and defendant No. 161 who was the proprietor and was represented by Mr. D. Ray, Mr. Sen, Mr. B.C. Das, Mr. N.C. Das and Mr. Majumdar. Mr. S.R. Das, Counsel, appeared with them. It is stated that some or all of these gentlemen also appeared for the tenants.

(3.) As soon as the appeal was called on, Mr. Ray took the preliminary objection on behalf of the tenants as stated in the order. Some discussion followed and ultimately the order as recorded was made. The reason why the order was recorded at that stage was that, as the hearing of the appeal was likely to occupy several days, it was felt that the tenants should not be put to the expense of being represented in Court everyday while the appeal was proceeding against the proprietor defendant alone. The order was made in the presence of representatives of all the parties, and no observation was made or exception taken by the vakils for the proprietor defendant who were present in Court. After the order had been passed, Mr. Chakrabarti proceeded to open the appeal, and our notes show that this occupied the whole of the day. At the close of the day, when the Court was about to adjourn, Mr. S.R. Das (who was not in Court when the order was passed) came in and stated that he would raise an objection to the competency of the appeal against the proprietor defendant No. 161 after the appeal had been dismissed against the tenants. Mr. Chakrabarti contended that the objection came too late, and stated that if such objection had been indicated before the order was made, as it might have been, by the vakils for the proprietor who were present in Court at the time, he would not have abandoned the appeal as against the tenants. The Court intimated that Mr. S.R. Das would be heard on the point the next morning. Mr. Chakrabarti stated that he would apply for the discharge of the order, as his application had been made under a misapprehension. On the next day, the parties were heard and the hearing of the appeal was adjourned. The present application was thereafter made so that the order of the 4 July 1922, might be recalled and the appeal set down for hearing in its entirety. We grant ed a Rule calling upon the opposite party to show cause why the order should not be discharged and the appeal heard in its entirety.