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CALCUTTA HIGH COURT
Pearson, J., Graham, J.
Krishna Charan Mondal - Appellant
Versus
Chinibasi Mondal & Ors. - Respondent
Decided On : 19-05-1924
Appeal - Re-admission of appeal - Opportunity to show sufficient cause for absence - Civil Procedure Code, Order 41, Rule 19
Fact of the Case:
The appellant had an appeal and a cross-appeal pending in the Second Additional District Judge of Dacca. When the appeals were called on, the appellant was absent, resulting in the appeal being dismissed for default and the cross-appeal being decreed ex parte. An application to re-admit the appeal was summarily rejected without giving the appellant an opportunity to show sufficient cause for the absence.
Finding of the Court:
The court found that the appellant was not given an opportunity to show that he was prevented by any sufficient cause from being present when the appeal was called on, as required by Order 41, Rule 19 of the Civil Procedure Code. The court allowed the appeal and sent the case back to the lower Appellate Court to entertain the application for re-admission of the appeal upon the merits and to dispose it of according to law. No order as to costs was made.
Issues: Failure to provide an opportunity to show sufficient cause for absence, Rejection of application for re-admission of appeal
Ratio Decidendi: The court held that the appellant should have been given an opportunity to show sufficient cause for the absence as per the provisions of Order 41, Rule 19 of the Civil Procedure Code. The failure to provide this opportunity led to the appeal being allowed and the case being sent back to the lower Appellate Court.
Final Decision: The appeal was allowed, and the case was sent back to the lower Appellate Court to entertain the application for re-admission of the appeal upon the merits and to dispose it of according to law. No order as to costs was made.
JUDGMENT
1. This appeal relates to an order of the Second Additional District Judge of Dacca, passed on the 9th June, 1922. On that date it appears that the present appellant had an appeal and a cross-appeal pending in that Court and when the appeals were called on he was absent. The result was that the appeal was dismissed for default and the cross-appeal was decreed ex parte. On the same day an application was made to re-admit the appeal upon which the application was rejected summarily, the learned Judge noting at the time that he had gone to the length of sending a peon to the Bar library to find the pleader, but neither the pleader nor the client could be found. We think that in these cases the best course to adopt, and the shortest in the end, is to treat the application as miscellaneous matter and to give the applicant an opportunity to show that he was prevented by any sufficient cause from being pre sent when the appeal was called on so as to comply with the provisions of Order 41, Rule 19, Civil Procedure Code. In the present case no such opportunity has been given to the appellant. Under the circumstances the appeal must be allowed and the case sent back to the lower Appellate Court to entertain the application for re-admission of the appeal upon the merits and to dispose it of according to law.
2. We make no order as to costs.
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