KOTTA VENKATARAJUGARU Vs. SRI RAJA SAHIB MAHERBAN-I-DOSTAN SRI RAJA RAVU KUMARA MAHIPATHI SURYA RAO BAHADUR GARU SIRDAR RAJAMUNDRISIRKAR AND MAHARAJA OF PITTAPURAM

JUDGEMENT

(1.) This Letters Patent Appeal has been preferred against an order of Cornish, J., refusing to restore S.A. No. 848 of 1932, which was dismissed under Order XLI, Rule 17, Civil Procedure Code, as the appellant's Counsel did not appear when the case was called. In support of the application a verified petition has been filed by the Counsel engaged in the case and it is there stated that at the time the second appeal came on before our learned brother, the Counsel was actually engaged in arguing a case before another Division Bench, that he did not make other arguments for the second appeal because he expected the case before the Division Bench to be over earlier but that to meet all contingencies he had asked a representative to be made to our learned brother if the case should be reached earlier, that he was actually engaged before another Bench and that he would be before Cornish, J., in a few minutes.

(2.) When the matter came on before us on a, previous occasion, a question had been raised by the office whether the appeal was competent without, leave granted by the Judge himself. Mr. Surayanarayana maintained that as this was not an order relating to the Appellate decree itself, no leave was necessary under the terms of Clause 15 of the Letters Patent. But as the point was not free from doubt, we preferred to allow the case to stand over to enable Mr. Suryanarayana to apply to Mr. Cornish. J., himself for leave. Leave has since been obtained.

(3.) We think it proper to refer here to the observations made by the learned Judge at the time that he granted leave because these observations make it clear that while it might be true that Mr. Suryanarayana had made proper arrangements for his difficulty being represented to the learned Judge, there was some mistake in carrying out these instructions so that the learned Judge was not properly informed of the exact situation. His observations leave little doubt in our mind that if only the matter had been properly placed before the learned Judge, this unfortunate situation would not have arisen.