KALI PRASANNO CHAKRAVARTY Vs. NAJABULLA JAMADAR

JUDGEMENT

(1.) It is an unfortunate case. It was started nearly seven years ago and bad a chequered career. It came to this Court twice. It is not necessary to relate the history of its progress. It is enough for our present purpose to refer to a few dates. The suit was decreed by the first Court and there was an appeal to the lower Appellate Court. There was also an application for review of judgment before the lower Appellate Court, which was finally granted on the 20 August, 1920. An appeal was preferred to this Court against the order granting review, on the 30th August, 1920. On the 4 September, 1920, the learned Judge, having granted the review, fixed the 25 September peremptorily for the rehearing of the appeal. On the 25th September, the appellant before us applied for an adjournment on the ground that he had sent all the papers in connection with the case to his pleader in the High Court in order to file an appeal, and as the pleader had left Calcutta during the long vacation he had not been able to get back the papers from him. The learn-ed Judge, however, rejected the application and heard the case exparte. His main grounds for refusing the adjournment are, first, that the case was an old one: and secondly, that he had given peremptory notice to the parties that the appeal would be taken up for hearing on the date fixed. We think that the Court below would have acted more wisely in allowing the respondent opportunity to be present at the hearing after the receipt by him of all the necessary papers that were with his pleader in the High Court. It is possible that the application for adjournment made before the lower appellate Court was groundless. It is possible also that he had sent his papers to his vakil in the High Court because as a matter of fact an appeal was preferred on the 30 August, 1920, that being the last day the High Court sat before the long vacation. The case was no doubt an old one, but it was restored not even a month before it was heard. In these circumstances we think that the learned Judge would have exercised proper discretion in giving an opportunity to the appellant to appear at the hearing. The result of the rejection of the application was that the ex parte decision affected not only the present tenant applicant but might affect the other tenants of the estate also. In this view of the matter it seems that this appeal should be re-heard.

(2.) The respondent opposes this order on the ground that we have no jurisdiction to interfere under Section 100, Civil Procedure Code, as appellant has other remedies open to him in the Court below. His contention is that the proper course which should have been adopted by the appellant was to apply to the Court below under Order 41, Rule 21, to restore the appeal to its file and to rehear it in his presence, but he [has not adopted this course. It is well known that when a case is decided exparte the remedy open to the party affected by the decision is threefold; first he may apply for restoration of the case; secondly, he may apply for a review of judgment, and thirdly, he may appeal from the decree. In this case the appellant has chosen the last recourse. I am not sure that this course was not intentionally adopted for a purpose; but that is a remedy open to him and I cannot but avail him of it. With regard to our jurisdiction under the Code I think that that jurisdiction is wide enough to embrace this. It is not; necessary to refer to any provision of the law; but if any be needed, reference may be made to Clause (2) of Section 100, Civil Procedure Code.

(3.) The learned Vakil for the appellant has agreed to pay to the respondent all his costs up to this stage of the litigation. On this undertaking being given, we direct that the appeal be allowed, the decree of the lower Appellate Court set aside and the appeal sent back to that Court for rehearing in accordance with law. The respondent will be entitled to costs in all the Courts. The appeal will be reheard by the lower Appellate Court on the appellant depositing costs of the respondent in the lower Appellate Court within one month after the arrival of the record there and assessment of costs by that Court. On his failure to do so the appeal will stand dismissed with costs.