1. This petition raises the question whether the petitioner is entitled to the restoration of her appeal which was dismissed in default.
2. The petitioner who had preferred an appeal in the Court of the Senior Sub-Judge at Gurgaon failed to appear in Court pn the 28th August 1954 when it was to come up for hearing. Fortunately for her 28th August was declared a holiday and all cases which were fixed for that date were automatically adjourned to the 30th August 1954, which was the next working day.
The petitioner was not present in Court on that day either in person or through counsel and the learned Senior Sub-Judge accordingly dismissed the appeal in default. The petitioner is dissatisfied with the order of dismissal and has come to this Court in revision under section 115 of the Code of Civil Procedure.
3. The rule on which the learned Senior Sub-Judge appears to have acted is in the following terms:
'On the occurrence of an unanticipated holiday or in the event of the presiding officer of a court being absent owing to sudden illness or other unexpected cause, all cases fixed for the day in question shall be deemed to have been automatically adjourned to the next working day when the presiding officer is present and it shall be the duties of the parties or their counsel (but not of witnesses) to attend court on that day.
Whenever possible the presiding officer should, as soon as may be, fix. fresh dates in cases fixed for the date which is declared a holiday or for which he has obtained leave, and issue notices to the parties, their counsel and witnesses, of the fresh dates fixed,'
The language of this rule is by no means clear, for it provides only that if the presiding officer of the Court is unable to attend Court on a particular date all cases fixed for that day shall be deemed to have been automatically adjourned to the next working day. The rule does not require that all cases which are adjourned shall be heard on the next working day.
All that it requires is that the parties or their counsel shall attend Court on the next day, if possible, so that the next date of the hearing should be fixed in their presence. This conclusion appears to be supported by the second paragraph of the rule which provides that the presiding officer shall fix fresh dates in cases fixed for the day which is declared a holiday or for which he has obtained leave and to issue notices to the parties, their counsel and the witnesses of the fresh dates fixed.
4. It may be that the petitioner in the present case did not appear in Court on the 30th August 1954, but it must be remembered that nothing was to be done that day. The parties were to be called and the case was to be set down for hearing on another date. The Senior Sub-Judge, however, decided to take up the appeal and to dismiss it in default. It seems to me therefore that the learned Senior Sub-Judge did not comply with the provisions of the rule which required him to adjourn the hearing of the appeal to another date. It has been held repeatedly that where the date fixed for hearing a case happens to be a holiday, the Court is in no way Justified In taking up the case on the following day and in passing any order to the prejudice of any of the absent parties without duly serving upon him a fresh notice of the hearing, Mt. Umat-ul-mughni Begum v. Salig Ram, AIR 1915 Lah 476 (A) and Raghunandan Lohar v. Bachu Singh AIR 1940 Pat 475 (B).
5. For these reasons I would accept the petition, set aside the order of the lower appellateCourt and direct that the appeal be restored andheard on merits. There will be no order as to costs.The parties will appear before the Senior Sub-Judgeon the 15th January 1957.