RAGHUBIR MAHTO Vs. GANESHDUTT OJHA

JUDGEMENT

(1.) THIS is an application filed under Order 41, Rule 21, Civil P.C., praying that Second Appeal No. 635 of 1932, which was dismissed by me on 5 November 1934, be re-heard. The applicant happened to be the respondent in that appeal and no one appeared on his behalf at the time of the hearing. The petition is filed on the basis of certain allegations made in the affidavit. The affidavit shows that the petitioner approached one of his friends in Bettiah who is familiar with the High Court work to look after his case. That gentleman introduced him to one Ramgati Singh who is known in that locality to be a frequent visitor to Patna and the petitioner entrusted him with some money and the necessary papers. But it appears that Ramgati Singh took no steps in the matter. The learned Advocate appearing on behalf of the petitioner urges that he could not contest the appeal on account of the laches of Ramgati Singh and he lost his case for no fault of his own. He has referred me to two cases: one reported in Kailash Chunder Das V/s. Ram Nath 2 CWN 414, and the other in Rukminimoyi Dassi V/s. Poran Chunder Bhera (1910) 39 Cal 341, but a mere glance at those cases will show that the Court was dealing with laches on the part of pleader's clerks, whereas in this case Ramgati Singh does not occupy any such recognised position. A case reported in Baji Lal v. Nawal Singh 1917 All 216, bears strong resemblance to the case in hand. The agent of a litigant engaged a counsel but near about the time of the hearing he took away the papers with the result that Counsel was unable to appear and the appeal was decreed ex parte. Their Lordships of the Allahabad High Court held that that was not a ground for re-hearing of the appeal under the provisions of Order 41, Rule 21. Agreeing with that principle, I would dismiss this application with costs. Hearing fee one gold mohur.