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Ningappa Narsingappa Havaldar Vs. Chandra Jakkappa Havaldar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 281 of 1941
Judge
Reported in(1942)44BOMLR367
AppellantNingappa Narsingappa Havaldar
RespondentChandra Jakkappa Havaldar
Excerpt:
.....the above principles apply not only to appeals or applications dismissed for default, but also to appeals dismissed for non-prosecution when it is due to the fact that the costs of the preparation of the appeal paper-books have not been deposited in time.;sonubai v. shivajirao (1920) i.l.r.45 bom. 648, s.c. 23 bom. l.r. 110, followed.;ramhari sahu v. madan mohan mittet (1895) i.l.r. 23 cal. 339, distinguished.;under the bombay high court civil circular no. 1257 of 1940, the appellate judge is not bound to dismiss an appeal for non-payment of the costs on the due date. he has power to excuse the delay on proper terms if he is satisfied that the non-payment was due to sufficient reasons.;a circular issued by the high court for the guidance of lower courts has not the effect of a rule..........ground that the costs for the paper-book were not deposited on account of a bona fide mistake. the learned judge, however, was of the opinion that that application could not be presented, to the court under order xl1, rule 19, of the civil procedure code, 1908, nor were the appellants entitled to invoke the help of the inherent jurisdiction of the court under section 151. he was further of the opinion that according to the high court circular no. 1257 of 1940 if the deposit was not made within one month, from the date on which notice had been given, the appeal was liable to be dismissed for want of prosecution. he, therefore, felt bound to dismiss the appeal. he says that he could not grant the appellants' request and thus act contrary to the strict rule made by the high court.2. the.....
Judgment:

Divatia, J.

1. This is a revisional application by the appellants in an appeal which was pending before the First Class Subordinate Judge with Appellate Powers at Belgaum. The appeal was filed by the present applicants and it was fixed for hearing on September 7, 1940. Before that date a notice was served on the appellants on August 2, for depositing the costs for the preparation of the paper-book of the appeal. According to the circular issued by the High Court those costs were to be deposited within a month from the date of the service of the notice, and the last date of the deposit was, therefore, September 2. As the amount was not paid on the due date, the appeal was dismissed on the next day, i.e. September 3, for want of prosecution. There is nothing to show whether the parties or their pleaders were present in the Court on: that date. Thereafter, on October 1, the appellants applied to the Court to restore the appeal on the ground that the costs for the paper-book were not deposited on account of a bona fide mistake. The learned Judge, however, was of the opinion that that application could not be presented, to the Court under Order XL1, Rule 19, of the Civil Procedure Code, 1908, nor were the appellants entitled to invoke the help of the inherent jurisdiction of the Court under Section 151. He was further of the opinion that according to the High Court Circular No. 1257 of 1940 if the deposit was not made within one month, from the date on which notice had been given, the appeal was liable to be dismissed for want of prosecution. He, therefore, felt bound to dismiss the appeal. He says that he could not grant the appellants' request and thus act contrary to the strict rule made by the High Court.

2. The circular issued by the High Court is not so strict as the learned Judge supposes. What the rule says is that the appeal shall be liable to be dismissed and not that the appeal shall be dismissed. The circular does: contemplate that the Court has power in proper circumstances to excuse the delay. In my opinion, therefore, the learned Judge erred in thinking that he had no power to go- into the question as to whether there was sufficient reason for not depositing the costs on the due date. The circular issued by the High Court has not the effect of a rule under the Civil Procedure Code as held in Dayanand Pandurang v. Daji Narayan (1926) I.L.R. 50 Bom. 793. But even so, the circular as it is worded does not make it obligatory on the Judge to dismiss the appeal without leaving any option to consider the merits of the reason for not depositing the costs.

3. It is, however, contended by the opponents in this Court that the appellants' remedy was to apply for a review under Order XLVII, Rule 1, and not to apply under Section 151 of the Civil Procedure Code. Reliance is placed on the decision in Ramhari Sahu v. Madan Mohan Mitter(1), Where the appellant in an appeal from an original decree having failed to deposit the estimated amount of costs for the preparation of the paper-book, the appeal was dismissed under the rules of the Calcutta High Court and it was held that the matter before the Court was not an application for review of judgment and could not be disposed of by a single Judge of the High Court. The decision in that case does not really apply to the present case. In my opinion, the learned Judge had inherent jurisdiction to entertain the application made by the appellants. If. has been held by our High Court in Sonubai v. Shivajirao(2) that Order XLI, Rule 19, does not exhaust the powers of the Court in a proper case to re-admit an appeal or an application dismissed for default, and that it is open to the Court in exercise of its inherent powers to deal with these matters under Section 151 of the Civil Procedure Code and to make an order to that effect for the ends of justice or to prevent abuse of the process of the Court, without any reference to the period of limitation fixed for applications to re-admit appeals or to restore any other proceeding dismissed for default. It is true that those observations are made with regard to an appeal or application dismissed for default. But in my view that would equally apply to a case where an appeal is dismissed for non-prosecution when it is due to the fact that the costs of the preparation of the paper-book had not been deposited in time.

4. I think, therefore, that the learned Judge had jurisdiction to entertain the application under Section 151 and he was not bound under the circular to dismiss the appeal for non-payment of the costs on the due date. He had power to excuse the delay on proper terms if he was satisfied that the non-payment was due to sufficient reasons. The learned Judge has not gone into that question, and I think it is, therefore, desirable to set aside the order of the learned Judge and send this matter back to the District Court at Belgaum for hearing the parties on the question as to whether there were sufficient reasons for not depositing the costs of the paper-book. If the Court is satisfied that there were sufficient reasons, it.would be justified in setting aside the dismissal of the appeal for non-prosecution on such terms, if any, as it may consider proper. The rule is made absolute with casts. Costs of the original application will be costs in the cause.


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