JUDGMENT

H.N. Agarwal, Member. - This is a revision against the judgment and order passed by Sri S.K. Ahmad, Addl. Commissioner, Jhansi Division, in appeal no. 117 of 1969, Ram Nath v. Ram Swarup.

2. I have heard the learned counsel for the revisionist and have gone through the record. The O.P.has not appeared in spite of service of notice.

3. The facts of the case are as follows-

The revisionist Ram Swarup had filed a suit u/s: 229-B Z.A. and L.R. Act against Ram Nath and others which was decree by the J.D., Jhansi by his order dated 21-11-1969. The O.Ps., Ram Nath and others had filed an appeal against this order had filed an appeal against this order before the Commissioner, Jhansi division which was dismissed in default on 21-10-1972. Subsequently by the impugned order dated 4-1-1973 the learned Addl. Commissioner restored the appeal on payment of the costs of Rs. 75/-. This order has been challenged in revision.

4. The learned counsel for the revisionist has argued that the court below has acted illegally in exercise of jurisdiction inasmuch as there was no reasonable cause for setting aside the order dated 21-10-1972. The discretion vested in the court to set aside a dismissal in default is a judicial discretion and the court below has exercised the same arbitrarily. The learned counsel has also contended that mere mistake on the part of the counsel of negligence on the part of the appellant or his counsel cannot be a sufficient ground for setting aside of on order dismissing the appeal for default.

5. I would uphold the above contentions of the learned counsel. Order 41 Rule 17 C.P.C. provides that where on the day fixed, on on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal in called on for hearing, the Court may make an order that the appeal be dismissed. The provision for re-admission of appeal dismissed for default in contained in Rule 19. This read as follows:-

"19. Readmission of appeal dismissed for default.-Where an appeal is dismissed under rule 11, sub-rule (2), or rule 17 or rule 18, the appellant may apply to the appellate court for the re-admission of the appeal and where it is proved that he was prevented by any sufficient cause from appearing when the appel was called on for hearing or from depositing the sum so required, the court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit".

6. The Rule lays down that the appeal has to be re-admitted only when it is proved that the appellant was prevented by appearing from any sufficient cause. The rule makes it clear that the matter of re-admission has not been left to the discretion of the curt. Where an appellant fails to prove sufficient cause for non-appearance the Court has not jurisdiction to re-admit the appeal.

7. In the present case the impugned order of the learned Additional Commissioner makes it clear the the appellant, his counsel were seeking adornments where by the O.P., was being harassed unnecessarily. No cause for the non-appearance of the appellant or his counsel on 21-10-1972 the date fixed for hearing has been shown. Therefore, the proof of sufficient cause for non-appearance is quite lacking. The only grounds indicated by the learned Addl. Commissioner for restoring the appeals are-

(i) personal apologies of the counsel for the appellant and (ii) the request of the counsel that the appellant would be harmed because it was the counsel's negligence.

None of these constitute sufficient cause within the meaning of Order 41 Rule 17 C.P.C. Personal Apologies of a counsel cannot override the provision of law. The argument that the appellant would suffer loss is also invalid. The trial court has already pronounced a verdict against the appellant. This is a perfectly judicial order and now the appellant cannot, in the garb of appeal, harass the other party by dragging on the litigation.

8. The result is that I hereby allow the revision and set aside the order of the lea