(1) This appeal is directed against the order of the Court of the District Judge, North Kanara, rejecting the application made under Rule 19 of Order 41 of the Code for re-admission of Civil Appeal No. 195/57 dismissed under sub-rule (1) of Rule 17 of Order 41 on 19-6-1961, when Sri. M. R. Kamath, Pleader, reported no instructions, In his application, the appellant stated that he had engaged Sri M. R. Kamath to argue the appeal, but the said Pleader without intimation or notice reported want of instructions and that he came to know of the dismissal of the appeal only on 20-11-1961 when the Pleader for the opposite Party in the trial court asked him whether he would pay the costs or execution should be issued. The application was opposed by the respondent No. 3 only. The appellant also made an application under Section 5 of the Limitation Act for condonation of delay in making the application for restoration. He averred that he came to know of the dismissal of the appeal only on 28-11-1961. The applications were filed on 7-12-61.
(2) The appellant examined himself in support of his application and there was no evidence on the side of respondent No. 3. The District Judge disbelieved the case of the appellant that he came to know of the dismissal of the appeal only on 28-11-61 from the Pleader for the opponents as alleged, as no costs were awarded in the appeal. The application for condonation of delay was refused and the application was rejected. Against the dismissal of the application for restoration of the appeal, the above appeal has been preferred. The respondents are unrepresented.
(3) I have pursued the records of the case, Sri. M. R. Kamath who was the Pleader for the appellant in Civil Appeal No. 195/57 filed a memo on 19-6-61 which reads thus:
'Pursis by appellant's Pleader I have no instructions in the above matter.'
After receipt of the memo, the district Court dismissed the appeal for default. When Sri Kamath was engaged for the appeal and his memo does not specify the reason for failing to proceed with the case, the District Judge, in order to protect the interests of the appellant, ought, either to have insisted on Sri Kamath conducting the appeal, or directed him to state the reason for not proceeding with the case. The Pleader did not produce any acknowledgment of notice issued by him to his client stating that he is reporting no instructions. By accepting the vakalat of the appellant to conduct the appeal. Sri Kamath agreed to argue the appeal.
If for non-payment of fee settled or any other reasons Sri Kamath wanted report no instructions, it was his duty to notify the appellant first and then seek leave of the court to retire from the case. It was the duty of the court to protect the interests of the appellant either by issuing notice to him or directing Sri Kamath to file proof of having issued notice of his intention not to proceed with the case. In my opinion, the court below in dismissing the appeal on the memo of Sri Kamath, failed to protect the interests of the appellant, when, by the acceptance of vakalat, the Pleader had undertaken to conduct the appeal.
(4) The evidence of the appellant that Sri Kamath did not inform him about the dismissal of the appeal stands uncontroverted: so also his evidence that he came to know of the dismissal of the appeal only on 28-11-1961.
(5) The appellant is a resident of Honnavar which is at a distance of about 52 miles from Karwar and the time taken between 28-11-1961 and 7-12-61 would be reasonable time required to proceed to Karwar to make necessary arrangements for filing the application. The grounds given by the court below for rejecting the application, in my opinion, cannot be supported on the material on record. The circumstances in which the appeal came to be dismissed, in my opinion, are sufficient for readmission of the appeal under Rule 19 of Order 41.
(6) For the above reasons, the appeal succeeds, the Order of the court below is set aside and Misc. Application No. 38/61 is allowed. In the circumstances no costs.
(7) Appeal allowed