1. Mr. Agarwala has done his best as he always does, and has put every possible argument on behalf of his client in defencg of the order which has been passed by the Court below. In spite of everything which he has said, this is one of the most striking examples which has come to my notice, during the short time that I have been here, of the methods which are from time to time adopted by the lower Appellate Courts to shut the door and to refuse to hear appeals when it is their duty to admit and hear them. Anybody studying the history of the attempts of the appellant in the lower Appellate Court in this case to get his appeal heard and decided and of the way in which those attempts were dealt with by the lower Appellate Court might well pause and think that the administration of Law under the rules of procedure was a mere game of hide and seek. It is true that justice cannot be administered in Courts of Law without strict and technical rules of practice and procedure it is equally true that parties who come for a hearing must do their best to comply with those rules of practice and procedure, otherwise business cannot be conducted on orderly lines at all. But life is full of accidents and mistakes occur, as is often said, in the best regulated families and I think that there is no civilized Court in the world in which it is not the recognized principle, where slips, mistakes, delays, and failure to comply with rules have occurred, to remedy such slips and mistakes if they are remediable, in order to arrive at a decision on the real dispute between the parties and if it is possible to punish the person who has been guilty of such mistakes in such a way as to remove any sense of grievance or injustice from the mind of the opposite party. 1 have had occasion more than once to call the attention of the lower Courts to the principles which have rightly guided the Courts in England now at least for two generations in dealing with matters of this kind, and to the principles which, I believe, prevail in the several High Courts of India and which certainly ought to prevail in any Court which seeks to administer justice.
2. Now the facts in this particular case are as follows. A suit was brought against two defendants Nos. 1 and 2 for a fraudulent sale, that is to say, the allegation was that they had dishonestly entered into a tran action with the express purpose of depriving the plaintiff of his rights. Now in an Appellate Court it is undesirable to make any observation about any allegation of that sort which still remains to be decided. At the present moment it has been decided by the Court of first instance adversely to the plaintiff, but the law gives the plaintiff a right to have his case on issues both of fact and of law, which are involved in the suit, re-heard and re-determined by the lower Appellate Court. In this case in order to enable that re-hearing to take place it was necessary for the plaintiff to serve defendant No. 2 as well as No. 1. He failed to do so. That he made an effort nobody denies, and the reasonable presumption from the effort that he made, is that he had a bona fide intention to bring defendant No. 2, if he could, before the Court, and have his case against him heard and decided. Everybody knows much better than I know the many reasons which may exist for failure of service. One knows the machinery which is adopted and the way in which notices are constantly served either insufficiently or at wrong places, or not served at all and in either of those cases they are matters for which the Court or at least the Court officials are responsible certainly, not the party. Where an act for which the party is not responsible has led to non-service, it is his duty to obtain extension of time. In this particular case for some reason or other, although some extension of time had been given to him to pay process-fee to enable the Court to serve defendant No. 2, he had failed to comply with that provision. Whether it was done owing to absence on business or to delay on his part or to an oversight on the part of his Pleader nobody has the slightest idea. The lower Court has not condescended to arrive at any finding upon the question at all. To my mind when a party is in default either through failure of the Court officials to serve notice or from some neglect to pay the necessary process-fees, the question whether he should be denied a hearing or should be allowed an adjournment is a question which must be judicially determined upon proper materials, i.e., upon evidence and for reasons to be given by the Judge who decides to deny him a hearing, so that such reasons may be reviewed, if necessary, by a higher tribunal. It amounts in substance to a final order, it is in fact a judicial act, and to my mind it requires as much care, circumspection and judicial discretion as any other judicial act. It is not the first time that a case of this nature has come to my notice, and what I feel so strongly about it is that the right of an adjournment was denied to the appellant on the sole ground that he was unable to effect service on defendant No. 2, and this was done without any judicial determination of the question at all. To my mind that was wrong, and no attempt has been made on behalf of the respondent to justify it or to suggest that any grounds existed for believing that the plaintiff-appellant was not asking for the adjournment perfectly bona fide. That mistake was an unfortunate one. It was a mistake of the Court and a mistake which in my view is much too frequent and which the inferior Courts will do well to guard themselves against. The result was that the plaintiff's Pleader was in a very considerable difficulty. I will not discuss here the alternatives open to him, but the net result was that, as things stood, he could not get his appeal heard and decided against one of the parties to the contract which he was attacking and to the appeal which he was asserting. He ultimately took the course which has been described as a mistake. In the result it has turned out to have been a very unfortunate course to take. I am not myself prepared to describe it as a mistake. I think it was a genuine attempt to get out of a difficulty which was really the result of the Court's action itself, and at the highest it was a mere error of judgment arrived at undoubtedly upon the spur of the moment for which very little blame, if any, can be attached. Of course if it had been a deliberate and voluntary decision on the part of the Pleader the whole aspect of the case changes. But it was not so: it was a decision thrust upon him by the emergencies of the moment and I am surprised that the Court should, without warning him, dismiss the appeal for that sole ground alone. That, however, is what happened. The application having apparently been settled, the name of defendant No. 2 having been struck off as a party to the appeal, the Court below found that the defect was fatal to the appeal and went on to hold that there was a final decree that the sale-deed was valid and bona fide. I should not be disposed to award any costs to the respondents in this matter at all unless they eventually succeed in the cause before the lower Appellate Court, but as my learned brother takes another view I agree in ordering that the respondents here should get the costs of this appeal. I would, therefore, allow the appeal and remand the case to the lower Appellate Court.
Sundar Lal J.
3. I agree with the order proposed and my reasons for doing so as shortly stated are these. The plaintiff in this case is a decree-holder. He had brought a suit on the 9th of December 1912 for recovery of a certain sum of money due to him, for which he obtained a decree on the 28th of February 1913. Shortly before the suit the judgment-debtor seems to have transferred certain property to his spiritual adviser for a sum of money set forth in the sale-deed. The plaintiff in this case brought a suit to obtain a declaration that the said sale and a supplementary sale executed on the date the former suit was filed were fraudulent, without consideration and null and void. On trial the Court of first instance came to the conclusion that the transaction was bona fide and for consideration. The plaintiff preferred an appeal against the said decree in the Court below making the transferee and the transferor both parties to it. The transferee had been duly served and appeared in the Court below. The address of the transferor given in the memorandum of appeal was the correct address and the address on which he was served in the Court of first instance, but in this particular case the peon sent it back with the report that no man of that name was to be found. On the report coming back the Court granted a week's time for payment of process-fees. This fee was not paid. The Court was not inclined to give any further indulgence and under those circumstances the plaintiff's Pleader made an application to strike off the name of the transferor from the array of parties to his appeal. This, in my opinion, was a mistake on the part of the plaintiff's Pleader, the transferor was a necessary party to the appeal and he should have insisted upon the appeal proceeding against both. However, under a mistake he applied for the name of the transferor being struck off. The Court allowed him to do so and sometime afterwards in November it rejected the appeal, on the greund that the appeal could not be heard because the transferor was a necessary party. Dr. Tej Bahadur Sapru has appealed. In this case the circumstances clearly show that unless some indulgence was shown by the Court to the plaintiff by granting him further time and allowing the mistake to be corrected, the appeal was bound to be dismissed. Pleaders like all other human beings are at times liable to err, and in this case the Pleader in perfect good faith, believing that the vendor was not a necessary party, faced as he was by the reluctance of the Court to grant him any further time, made the application. The Court apparently then did not think that he was a necessary party and granted the application. Dr. Tej Bahadur's client is not entitled as a matter of law to any indulgence but the Court may, in the interests of justice, allow the mistake to be rectified. I have no objection to permitting the mistake to be rectified by the addition of the transferor in the Court below amongst the respondents and as it will enable that Court to do justice between the parties, I concur with the order proposed but as, in my opinion, the fault lay in the plaintiff's application to strike out the name of the transferor, Mr. Agarwala is entitled to his costs of the appeal. I would also allow the appeal and remand the case.
4. The appeal is allowed, the decree of the lower Appellate Court is set aside and the case sent back to it with directions to re-admit the appeal upon its file of pending appeals, to add the name of the transferor in the array of respondents, to give the plaintiff-appellant a reasonable time to serve the transferor with notice of his appeal and then hear the appeal on the merits and decide it according to law. Under the circumstances of the case the appellant must pay the costs of this appeal, which will include Counsel's fee in this Court on the higher scale.