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PATNA HIGH COURT
V.Ramaswami and Sarjoo Prasad JJ.
Ganesh Ram
Versus
Baikunthesh Prasad Singh
Appeal From Original Order No. 77 of 1948 ;
Decided On : APRIL 13, 1950
APPEAL - RESTORATION - DISMISSAL FOR DEFAULT - SUFFICIENT CAUSE - ORDER 41, RULE 19, C. P. C. - CROSS-OBJECTION - ORDER 41, RULE 33, C. P. C. - SCOPE - INTERFERENCE WITH DECREE IN FAVOUR OF APPELLANT - FURTHER INTERFERENCE TO ADJUST RIGHTS OF PARTIES - DISCRETION OF APPELLATE COURT.
Fact of the Case:
The appellant filed an appeal against the decree of the trial court. The respondents filed a cross-objection with respect to the claim for mesne profits which had been disallowed by the trial court. The learned Judge fixed a date for hearing the appeal. On that date, counsel for the appellant stated that his client reached the court late and was not ready to argue the appeal. The Court rejected the petition for adjournment and dismissed the appeal for default of the appellant. The Court heard the cross-objection of the respondents ex parte and granted him a decree for mesne profits. The appellant then applied for rehearing the appeal under Order 41, Rule 19, C. P. C.
Finding of the Court:
The court held that the appeal was competent under Order 41, Rule 19, C. P. C. and the preliminary objection taken on behalf of the respondents must fail. The court further held that sufficient cause had been shown for restoring the appeal. The court also held that the orders of the District Judge dismissing the appeal and allowing the cross-objection were interdependent and incapable of being dissociated from each other. Therefore, the court exercised its discretion under Order 41, Rule 33, C. P. C. and set aside the orders of the District Judge dated 16th and 17th September 1947, dismissing Title App. No. 162 of 1947 ex parte and allowing the cross-objection filed by the respondents. Both the appeal and the cross-objection were restored and the learned District Judge was directed to dispose of them according to law after further hearing.
Issues: 1. Whether the appeal was competent under Order 41, Rule 19, C. P. C.? 2. Whether sufficient cause had been shown for restoring the appeal? 3. Whether the orders of the District Judge dismissing the appeal and allowing the cross-objection were interdependent and incapable of being dissociated from each other? 4. Whether the court could exercise its discretion under Order 41, Rule 33, C. P. C. to set aside the orders of the District Judge?
Ratio Decidendi: 1. The court held that the appeal was competent under Order 41, Rule 19, C. P. C. as the appellant was present in court but his pleader was not ready to argue the case. 2. The court held that sufficient cause had been shown for restoring the appeal as the appellant missed the train on the previous date and the morning train by which he reached the court was three hours late. 3. The court held that the orders of the District Judge dismissing the appeal and allowing the cross-objection were interdependent and incapable of being dissociated from each other as the cross-objection was allowed on the basis of the dismissal of the appeal. 4. The court held that it could exercise its discretion under Order 41, Rule 33, C. P. C. to set aside the orders of the District Judge as further interference was required to adjust rights between the parties.
Final Decision: The court allowed the appeal, set aside the orders of the learned District Judge dated 16th and 17th September 1947, dismissing Title App. No. 162 of 1947 ex parte and allowing the cross-objection filed by the respondents. Both the appeal and the cross-objection were restored and the learned District Judge was directed to dispose of them according to law after further hearing.
Ramaswami, J.
1. This appeal is presented against the order of the District Judge of Shahabad refusing to restore an appeal which had been dismissed for default.
2. The plaintiffs had brought a suit for redemption of a rehan bond alleging that they had deposited the amount in Count under Section 83, T. P. Act and had also caused a notice thereof Served upon the defendant. In spite of the service of notice the defendant refused to give possession of the land and the plaintiffs therefore claimed mesne profits for the period subsequent to the date of the deposit of the rehan money. The defendant contested the suit on the ground that the plaintiffs bad no right to redeem. The trial Court granted a decree for redemption but rejected the claim for mesne profits on ground that there was no evidence adduced to prove that plaintiffs had made the deposit on the alleged date. Against this decree the defendant filed an appeal. The plaintiffs filed a cross objection with respect to the claim for mesne profits which had been disallowed by the trial Court.
3. The learned Judge fixed 16-9-1947 for hearing the appeal, On that date counsel for the appellant stated that his client reached Arrah at 11 A. M. and so he was not ready So argue the appeal. Learned counsel asked for a short adjournment but the Court rejected the petition and also dismissed the appeal for default of the appellant. The Court heard the cross-objection of the respondents ex park and granted him a decree for mesne profits which should be ascertained in future proceedings. The defendant then applied under Order 41, Rule 19 for rehearing the appeal. The learned District Judge rejected this application on the ground that no sufficient cause was shown for the non-appearance of the appellant on the date fixed for hearing.
4. On behalf of the respondents a preliminary objection is related (debated?) that this appeal is incompetent since the learned District Judge had not dismissed the appeal for default and Order 41, Rule 19 was therefore not applicable. It was pointed out on the respondents behalf that both the appellant and his counsel were present in Court and after the petition for adjournment had been rejected the counsel for the appellant withdrew on the ground that he was not ready to argue the cage. In support of his argument learned Counsel cited Mathura Das V/s. Narain Das, A. I. R. (27) 1940 ALL. 248 : (I. L. R. (1940) ALL. 220), and Raghubar Singh V/s. Gouri Charan Singh, A. I. R. (5) 1918 Pat. 259: (46 I. C. 492). In the Allahabad case, Mathura Das V/s. Narain Das, A. I. R. (27) 1940 ALL 248 : (I. L. R. (1940) ALL. 220), there is no doubt an observation that in the case of an appearance by an appellant who was not prepared to argue the appeal Order 41, Rule 17 would not be applicable. Bat this authority is inconsistent with the current decisions of the Patna, Calcutta and Madras High Courts as will be presently shown. Raghubar Singh V/s. Gouri Charan, A. I. R. (5) 1918 Pat. 259 : (46 I. C. 492) the question to be decided was whether a compromise petition according to which the parties had agreed that the suit should be dismissed could be set aside by an application under Order 9, Rule 9. It should be added that according to the terms of the compromise petition the Subordinate Judge had dismissed the suit and the plaintiffs alleging that by practice of fraud their thumb-marks were taken on the compromise petition had applied for setting aside the order of dismissal. A Bench of this Court of dismissal in accordance with the terms incorporated therein could be set aside or reviewed in accordance with the procedure laid down in Order 9, Rule 9. Obviously the material facts in the present case are different. On the other hand in Lalji Sahu V/s. Lachni Narain Singh, 3 pat. L. J. 355 : (A. I. R. (5) 1918 pat. 351), it was held that the presence of the plaintiff in Court was not an appearance within the meaning of Order 9, Rule 8 if the pleader of the plaintiff is ab
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