MATHURA DAS Vs. NARAIN DAS

JUDGEMENT

(1.) This is a first appeal from an order of the learned District Judge of Jhansi rejecting an application for restoration of an appeal. The plaintiff-appellant filed the suit which was dismissed and he appealed to the District Judge. Notice was issued on the appeal and 22 December, 1937 was fixed for hearing the appeal. On 21 December 1937, the day before the date fixed, an application was filed by counsel on behalf of the appellant asking for a local inspection. No order was passed on that application presumably as it was to be heard on the following day. On 22 December, 1937 the appeal was called at 2 P.M. and the learned Counsel for the respondent was present. Neither the appellant nor any of the three counsel whose vakalatnamas had been filed in the appeal appeared on his behalf at any time on the date fixed. The Court waited for one hour until 3 P.M., and at 3 P.M. the appellant appeared in person and put in an application signed apparently by the appellant but without identification by any one and without the signature of any vakil. This is paper 144 C. This application asks for an adjournment on the ground that two of the counsel were busy in other Courts and that the third counsel had been engaged the day before and had not prepared his arguments in the appeal. On this the Judge recorded an order refusing adjournment and stated: This application could have been made yesterday when my reader had to postpone other appeals till next year. It is now made at 3 P.M. after keeping me waiting since 2 P.M. Refused.

(2.) The Judge then passed an order dismissing the appeal: I have waited from 2 to 3 P.M. to hear the appellant's pleader. The appeal is not a long one and arguments could have been heard in half an hour. At 3 P.M. I was asked to postpone it although the respondents pleader has been waiting all this time. I see no reason why postponement should be allowed at such short notice. Yesterday my reader was postponing other appeals till next year. This one could easily have been postponed. The appeal is dismissed with costs in default.

(3.) Subsequently, an application was made for restoration and there was an objection filed by the pleader for respondent and the Judge dismissed the application for restoration on the grounds given by the objection. These grounds were that on 18 August 1937 the appellant had got an adjournment, that he had engaged three pleaders and on the date fixed, 22 December, 1937, none of these three pleaders appeared to argue the appeal and the appellant himself was absent at the hour when the case was called. This first appeal is filed, not against the order dismissing the appeal, but against the order rejecting the application for restoration. At the same time, the argument which has been addressed to us and is contained in the second ground of the appeal is that the appeal in the Court below could not have been dismissed for default but should have been disposed of on the merits. This argument is based on the fact that the appellant himself appeared before the District Judge had passed the order dismissing the appeal. The argument is therefore that Order 41, Rule 17 will not apply as Rule 17(1) states: Where on the date fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.