TRIMBAK Vs. KRISHNA RAO

JUDGEMENT

(1.) THE plaintiff whose appeal was dismissed on 12th October 1927 seeks a review of the decision on the ground that this Court should not have refused to adjourn the case when the advocate who was retained to argue it declined to argue it as the balance of fees promised was not paid and the newly engaged pleader said that he was not prepared with facts and law within the short time at his disposal after his engagement, and also on the ground that this Court declined to permit appellant 2 who was present in person to file a written argument by way of reply to the argument addressed by the respondents. It is urged that besides this there is an error apparent on the face of the record in that when the appellant was not prepared to go on with the arguments this Court ought to have treated that inability being tantamount to appellant's absence, and refrained from hearing any arguments of the respondent and deciding the appeal on the merits but it should have dismissed the appeal for default of appearance as it were. A further contention is raised that some of the phases of the question of limitation raised in the grounds of appeal have not been at all touched by this Court in its judgment.

(2.) I am not prepared to uphold any of these contentions. In view of the case in Jhackan Singh v. Uttamchand [1903] 17 C.P.L.R. 1. the mere unpreparedness of the appellant's counsel to argue the appeal is no ground for the Court to dismiss the appeal for default. The failure to offer argument in support of the appeal does not relieve the Court of its obligation to decide the appeal on its merits. I therefore think that the applicants' argument that this Court's procedure of hearing the arguments for the respondent, after having called upon the appellant to say what he had to say in support of their appeal, was fully justified and according to law. Then it is argued that in not permitting the appellant to file a written argument by way of reply this Court has contravened the provisions of Rule 16, Order 41, Civil P.C. All that the rule compels the Court to do is to hear the argument if any addressed and not to permit written argument. It was open to appellant 2 who was personally in attendance to address such verbal arguments as he may have desired. He was not prevented from doing so.