JATINDRA NATH MUKERJEE Vs. SURADHANI DEBI

JUDGEMENT

(1.) These appeals are against the two orders of the learned Additional District Judge of Howrah, dated the 13 December 1926. Two appeals had been preferred to the learned Additional District Judge from an order of the learned Munsif of Howrah, dimissing certain objections by the appellant to the recording of a solenama and dismissing an application by the appellant to set aside the confirmation of a sale under Order 21, Rule 92. On the 2nd December 1926, when the appeals were fixed for hearing, the appellant was ill, and the appeals were dismissed under Order 41, Rule 17. Thereupon, the appellant preferred an application under Order 41, Rule 19, for the purpose of obtaining the re-admission of each of these appeals. On the 13 December the appellant filed a petition stating that he was suffering from malaria and kalaazar and was too ill to attend, and prayed for an adjournment and there was already upon the file the certificate of a medical gentleman to the effect that he was suffering from malaria, and was very ill and unable to attend. Now, if it had been the fact that the learned District Judge had considered the matter upon the merits and had come to the conclusion that there were really nothing before him upon which he could reasonably act, I should have been slow to interfere with his order; but from the language which he used in his orders, passed on the 2 December, and on the 13 December, I think that the learned Additional District Judge acted in too summary a fashion. The conclusion at which I arrive is that he was not disposed to hear applications-for postponements on account of illness on that day at all. That, as he himself stated, 95. per cent, of the appeals were alleged not to be ready because of illness, and the conclusion at which I have arrived is that the learned Additional <JGN>Page</JGN> 2 of 2 District Judge acted too summarily in the matter. What he ought to have done was to have given the appellant an opportunity of substantiating his application. Instead of that I collect from the orders themselves that he summarily disposed of the matter upon the ground that there were too many applications for adjournment on the score of illness.

(2.) For these reasons I think that the order cannot stand, and that the cases should be sent back to the learned Additional District Judge of Howrah in order that he shall consider the application of the appellant in each case which he has filed under Order 41, Rule 19, and otherwise dispose of the appeals according to law,. Costs will abide the event, the hearing fee being assessed at two gold mohurs in each case. Graham, J.

(3.) I agree that the orders; cannot be supported and that the appeals, must be allowed.