BALRAM DAS Vs. HARAKH CHAND

JUDGEMENT

(1.) These two appeals arise out of the same case in the following circumstances : On 12 January 1945, the date fixed for the hearing of the appeal, the appellant was absent. He had engaged two lawyers. They were sent for, but they refused to address arguments in the appeal saying that they had no instructions. The Court then proceeded to dismiss the appeal, with the following order: I see no force in this appeal which the vakils for the appellant did not argue on the excuse that they have no instructions. The respondents vakil is present. <FV>Appeal dismissed</FV> with costs. Treating this order to be an order of dismissal for default, an application was made for the restoration of the appeal. That application was also rejected. Second Appeal No. 1007 of 1945 has been filed against the decree of the lower appellate Court dismissing the appeal itself and F.A.F.O. No. 37 of 1915 has been filed against the order refusing to restore the appeal.

(2.) It is obvious that both these appeals cannot succeed and at least one of them must fail. The order dated 12 January 1945 is either an order dismissing the appeal for default of appearance or an order dismissing the appeal on merits. It cannot be both. If it is an order of the former description, it does not amount to a decree and no second appeal lies from it. Second Appeal No. 1007 of 1945 should, therefore, fail. If how-ever, it is an order of the latter description, the application for the restoration of the appeal was not maintainable and F.A.F.O. No. 37 of 1945 must fail on that ground.

(3.) The first point for consideration is whether the order dated 12 January 1945, is an order of dismissal for default, or an order dismissing the appeal on merits. No doubt, the appellant was absent when the appeal was taken up and dismissed but his two pleaders were present. They did not say that they had withdrawn from the case, or that they had terminated their engagement with their client, or that they were not appearing in the case. All that they said was that they had no instructions.