BAIJ NATH Vs. SYED WALI HASAN

JUDGEMENT

(1.) THE question for determination is whether the appellant before us, who was appellant in the Court below, should be permitted to have his appeal to the lower Appellate Court re-admitted and decided on the merits, or whether the order refusing to re-admit his appeal which has been passed by the learned District Judge should be allowed to stand. THE appeal in the Court below was set down for hearing on February 16th, 1915. It was postponed because the pressure of work was too great to admit of the Courts disposing of the day s list. An order was passed that the appeal should again be put up for hearing on February 17th, 1915. THEre is nothing on the record before us to show that this order was communicated to any of the parties concerned, or their legal representatives. THEre is an affidavit by the defendant himself to the effect that no intimation of the next date of hearing was given. On February 20th, 1915, the appellant presented an application to the Court below, supported by this affidavit, asking for a re-hearing. THE Legislature has provided no appeal from an order dismissing an appeal for default under Order XLI, Rule 17 of the Code of Civil Procedure, but it has provided an appeal from an order refusing to re-admit an appeal dismissed for default. In our opinion this appeal must succeed. THE appellant has shown sufficient cause for his absence on February 17th in that he has shown that he did not know that his appeal was set down for hearing on that day. We accept this appeal and, setting aside the order of the Court below, direct that the appeal of Lala Baijnath dismissed by that Court on February 17th, 1915, be re-admitted to the file of pending appeals and disposed of according to law. We think that the appellant is entitled to his costs of the present hearing in any event, and we order accordingly.