VENKATACHALA PADAYACHI Vs. VELAYUDHA PADAYACHI

JUDGEMENT

(1.) This case had had an unfortunate history and it is to be regretted that it has again to go back to the lower Court. One of the questions to be decided was, whether the alienations were made for justifiable necessity, and that question has not been gone into by the lower appellate Court. Whether the defendants, the appellants here, appeared in that Court or not, it was the Judge's obvious duty (and this is conceded) to have judicially determined that point. As I have said, he did not apply his mind to it and the case has therefore to go back to him to be heard on its merits.

(2.) As regards the issue whether the plaintiff is the reversioner, the case stands on a slightly different footing. The finding was against the present appellants, but no objections were filed questioning it, within the time limited. The finding was received on 8 February 1928 and the objections should have been filed by the 16th. The appeal was taken upon the 27 and on that day the present appellant's pleader was not present. But I must remark that it has not been stated that his absence was due to any negligence on his part. He however appeared on the next day, and made a representation that he was unable to file objections in time, a copy of the finding not having been furnished to him. The learned Judge does not say, although he had all the records before him, that the copy was not applied for in time, and I must take it that an application had been properly made but the copy was not furnished. I am not satisfied that there has been such negligence on the appellant's part as to disentitle them from having the appeal heard on the merits. The appeal was heard within less than 20 days after the receipt of the finding, and it appears likely that there was no want of diligence on the appellant's part.

(3.) In these circumstances, two courses are open to me; either to remand the case to the first appellate Court for its being heard or to call for findings on all the issues and to dispose of the second appeal myself. Both sides very wisely agree that the latter is the preferable course, as by following it much time and expense will be saved. The appellants shall have four weeks from to day to file objections to the finding aforesaid. I call upon the lower appellate Court to hear the appeal and return its findings on all the issues in the case within two months from this date. Objections, if any, shall be filed in ten days from the return of the findings. I direct the appellants to pay in any event the costs of the proposed hearing by the lower appellate Court, which I fix at Rs. 35.