1. This is an application for revision of the order of the learned District Judge of Benares dismissing the applicants' appeal. The facts as set out in the judgment of Court below are as follows:
The suit was called on 10 minutes ago. It is now 1-20 P.M. Pandit Uma Kant Pande, one of the Pleaders for the appellants, who was then in Court informed me that he had a sore throat. As he had two colleagues engaged with him, I told him that one of them would have to argue the appeal if he could not, or I would dismiss it. He went off then and has not returned, nor has any of his other colleagues put in an appearance I have waited more than a sufficient time and decline to wait any longer. The appeal is dismissed for default with costs.
2. It is clear from the above facts that the Court below would have exercised a wise discretion if he had waited some time longer before taking up the case. On behalf of the plaintiffs, opposite parties, it is contended that no application in revision lies inasmuch as the remedy open to the opposite party lay in an application under Order XLI, Rule 19, which provides that when an appeal is dismissed for default under Rule 11 or Rule 17 of Order XL [the appellant may apply to the lower Appellate Court for re-admission of the appeal. This argument proceeds upon the assumption that the appeal was, as a matter of fact, dismissed for default as is stated in the judgment of the Court below. A dismissal for default implies that the appellant was not present at the hearing of the appeal either in person or by a Pleader. In the present case the Pleader for the appellant was present but was prevented by physical disability from arguing the case. I think that under the circumstances it can scarcely be said that there was no appearance on behalf of the appellant.
3. I allow the application, set aside the order of the Court below and direct that Court to decide the appeal on the merits. Costs of the application to be cost in the appeal.