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Bhola Nath Vs. Kartik Prasad Pande - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1915All133; 29Ind.Cas.59
AppellantBhola Nath
RespondentKartik Prasad Pande
Excerpt:
civil procedure code (act v of 1908), section 115, order xli, rule 10 - appeal, security for--notice to show cause--sufficient cause not shown--dismissal of appeal on that day--material irregularity. - - we think that the proceedings of the court below were irregular and the irregularity was a material one, the case being a hard one, inasmuch as the appeal was dismissed unheard because of the appellant's failure to comply with an order which, the learned subordinate judge himself admits, was not on the face of it an order with which he could reasonably have been expected to comply......applied under order xli, rule 10, civil procedure code, that the appellant might be ordered to furnish security for the costs of the first court and of the appellate court before the appeal was heard. the subordinate judge passed an english order to the effect that notice should go to the appellant to appear before the court on may the 14th, 1914, and to show cause why he should not be required to furnish security to the amount of rs. 150 before the appeal was allowed. no sufficient cause being shown, an order was passed requiring security in the sum named to be furnished on the following day. this order was not complied with and the appeal was thereupon dismissed without having been heard on the merits. there had been one irregularity in the proceedings, in that the vernacular.....
Judgment:

1. This application for revision arises out of the following facts. An appeal was pending before the Subordinate Judge of Mirzapur in which 15th of May 1914 was fixed for hearing. On the 29th of April 1914, the respondent applied under Order XLI, Rule 10, Civil Procedure Code, that the appellant might be ordered to furnish security for the costs of the first Court and of the Appellate Court before the appeal was heard. The Subordinate Judge passed an English order to the effect that notice should go to the appellant to appear before the Court on May the 14th, 1914, and to show cause why he should not be required to furnish security to the amount of Rs. 150 before the appeal was allowed. No sufficient cause being shown, an order was passed requiring security in the sum named to be furnished on the following day. This order was not complied with and the appeal was thereupon dismissed without having been heard on the merits. There had been one irregularity in the proceedings, in that the vernacular notice issued to the appellant was not in accordance with the Judge's English order. It directed the appellant to show cause on May 14th, 1914 why he should not be required to furnish security before the appeal was heard, and not before the appeal was allowed. The apparent object of the Subordinate Judge was that the question of the application by the respondent in the matter of the security should be disposed of in time to ensure the hearing of the appeal on the date fixed, that is to say, oti May 15th, 1914. If he had seen fit to issue a notice so worded as to call upon the appellant either to furnish security on the date specified, or to show adequate cause to the contrary, his order would have been unassailable. The notice actually issued, besides being at variance with the Court's English order, did not put the appellant on his guard that the security must be ready in Court in the event of sufficient cause not being shown. In his order disposing of the matter, the learned Subordinate Judge admits that under ordinary circumstances an order giving the appellant, who was a resident of Benares, only one day in which to furnish the required security would not have been a proper order. He assumes, however, that the notice issued by the Court was sufficient to give the appellant warning that he must either, come to Court on the 14th May 1914 with his security ready, or must be prepared to show adequate cause against his being required to furnish such security. This contention overlooks the fact that the notice issued by the Court was not calculated to warn the appellant to have his security ready on May the 14th. We think that the proceedings of the Court below were irregular and the irregularity was a material one, the case being a hard one, inasmuch as the appeal was dismissed unheard because of the appellant's failure to comply with an order which, the learned Subordinate Judge himself admits, was not on the face of it an order with which he could reasonably have been expected to comply. We accept this application, set aside the order dismissing the appeal and direct the Subordinate Judge to re-admit the appeal on to his file of pending cases and to give to the appellant reasonable time, not less than one week, within which to comply with the order requiring him to furnish security. The costs of this application will be costs in the suit.


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