SAKALRAJ DUBE Vs. MTJADU RANI

JUDGEMENT

(1.) WE think that the learned judge who has disposed of this application has missed the point. When a vakil re-presents his client the right of audience is, for the time being, vested in him. For the purpose of continuing the hearing oil commencing the hearing, he is the appellant. If he is absent there is default. According to the entry in the order-sheet the appellant was absent as well as his vakil. Possibly he was running after him to see if he could find him, but even if he had been corporeally present in the sense in which the judge whose order is appealed from appears to mean we think that in eyes of the law he was not present in such a sense as to prevent the absence of the vakil from being a default. If a judge is anxious to assist a party in distress he can give him a little time to obtain the assistance of a new vakil, or adjourn the case, and make him pay costal or something of that sort, but for a default of this kind we do not think that, subject to the penalty usually inflicted the client should be deprived of the right of having his appeal heard.

(2.) WE, therefore, allow this appeal though not as a matter of right. The appellant must deposit in the Court below the costs of the successful application for restoration and of the appeal, and when he has deposited those costs either in cash or by way of security so that they can be paid out to the other side on the order of the judge, the case must be restored to the pending file and the appeal re-heard on the merits.