JAHA BAKSHA Vs. ABDUL LATIF

JUDGEMENT

(1.) This is an appeal from an order passed by the Additional District Judge of Chittagong dismissing the appellant's petition for restoration of an appeal which was dismissed as the appellants were absent at the hearing of the appeal. The appeal was pending in the Court of the District Judge of Chittagong. On the 28 November it was transferred to the file of the Additional District Judge and on the same day the case was called and as the appellants were not present, it was dismissed for default. The appellants subsequently filed a petition for restoration of the appeal on the ground that neither they nor their pleader were aware of the transfer of the appeal to the file of the Additional District Judge and so could not be present when the case was called The learned Additional District Judge, without taking any evidence or giving the appellants an "opportunity of adducing evidence, dismissed the application as he was of opinion that it was hard to believe that either the pleader or his client was ignorant of the transfer. We think that the procedure followed by the learned Judge is not quite in accordance with law, and that an opportunity should have been given to the appellants to prove their contention. The usual procedure is to register such an application as a miscellaneous case and give both sides an opportunity of adducing evidence under Order 41, Rule 19, the Judge can only restore an appeal dismissed for default if it is proved to his satisfaction that the appellant was prevented by sufficient cause from appearing at the hearing, This proof is only possible if the petitioner is given an opportunity of adducing evidence. It is no doubt possible that after taking all the evidence the learned Judge might still be of the same opinion as he has already expressed. We think, however, that an opportunity should have been given to the petitioner to substantiate his allegations. The usual course would be to send the case back to the learned Judge to dispose of the application after hearing such evidence as may be adduced by the parties. But in the particular circumstances of this case and in view of the fact that the course suggested would only protract the litigation, we propose to allow the appeal and to set aside the order of dismissal of the appeal for default, The whole matter is before us and the circumstances upon which we have been induced to take this course are, first, that the appeal was transferred on the day on which it was dismissed from the file of one Judge to that of another, and secondly, that the pleader who appears for the appellant has also filed the petition in which he mentions that neither he nor his client was aware of the transfer. In these circumstances, we consider ft in the interests of the parties concerned that the appeal should be heard and finally disposed of as soon as possible.

(2.) The result, therefore, is that this appeal is allowed, the orders of the Court below, dated the 9 December 1922 and that of the 28 November 1922, are set aside and the appeal is directed to be restored to the file and heard and disposed of as early as possible. We make no order as to the costs of this appeal. Graham, J.

(3.) I agree.