LAWS(PVC)-1936-11-131

SYED MOHAMMADI HUSAIN Vs. MTCHANDRO

Decided On November 19, 1936
SYED MOHAMMADI HUSAIN Appellant
V/S
MTCHANDRO Respondents

JUDGEMENT

(1.) This is a plaintiff's second appeal and involves a very short point for decision. The suit was dismissed by the trial Court. The plaintiff preferred an appeal, which came on for hearing before the learned Subordinate Judge of Muzaffarnagar. The pleader, who had been, engaged by the appellant, appeared when, the case was called on for hearing ands presented an application to the effect that the file of the case was very heavy and that owing to other engagements he could not prepare the appeal. For that reason, it was prayed that the appeal be adjourned. The application was rejected The learned Judge recorded the following order: The appellant's pleader is not prepared to argue: the appeal. His application for the postponement of the appeal has been dismissed. I therefore dismiss the appeal for want of prosecution with costs.

(2.) The present appeal is directed against a decree in pursuance of the judgment quoted above. A preliminary objection is taken by the respondents counsel that no appeal lies. It is argued that the appeal having been dismissed in default, the only remedy open to the appellant was to apply for restoration of the appeal; and that if such application were refused, he could prefer an appeal from the order refusing to restore the appeal. This argument is based on anerroneous assumption, namely that the appeal was dismissed for "default" or non-appearance. As a matter of fact there was appearance. The pleader, who had been engaged by the appellant to argue the case, was present and prayed for time. There is nothing in the judgment of the lower appellate Court to suggest that on the application for adjournment being dismissed he retired and there was no appearance thereafter. The learned Judge clearly was of opinion that the refusal or inability of the pleader to argue the appeal amounted to "want of prosecution." He did not treat the case as if no appearance at all had been put in by or on behalf of the appellant. It is perfectly clear to me that it was not open to the appellant to make an application for restoration of the appeal, as if the same had been dismissed for default or non- appearance. The (disposal of the appeal clearly amounted to a "decree," as defined in the Civil Procedure Code, and a second appeal is maintainable. Accordingly I hold that the appeal does lie.

(3.) It is open to the appellant to impugn the decision of the lower appellate Court on such ground as is permissible under Section 100, Civil P.C. One of the grounds taken in the memorandum of appeal is that in the circumstances of the case the lower appellate Court should have granted the adjournment prayed for. I do not think this ground can be taken in I second appeal. The lower appellate Court had undoubtedly the discretion to refuse the adjournment prayed for. Its exercise of discretion one way or the other is not a matter which can be the subject of second appeal. If this had been the only point in the case I would have dismissed the appeal.