1. The plaintiff (now respondent) sued on a promissory note and in the appeal from the dismissal of her suit the defendant applied for and obtained an order directing her to furnish security for costs. The property which was tendered for this purpose was found insufficient and the Court gave her further time to supply the deficiency up to 13th February, 1926. This was not done and on that date neither she nor her pleader was present. The Subordinate Judge, therefore, passed an order.
Appellant and her Vakil are absent, security not given. The appeal stands dismissed with costs.
2. That order was actually passed on the application (IA. No. 2202 of 1925) for security filed by the defendant, but it of course involved also the dismissal of the appeal. On 16th March, 1926, the plaintiff applied for a review of the order passed on I.A. No. 2202 and the learned Subordinate Judge granted it, at the same time restoring the appeal and allowing another petition by the plaintiff for further time within which to furnish security. We have now before us a Civil Revision Petition against the order in I.A. No. 969 of 1926, which was the order restoring the appeal, and a Civil Miscellaneous Appeal against the order in I.A. No. 970, which was, if we look to its terms, an order reviewing the order passed in I.A. No. 2202.
3. It is clear that the primary question which we have to decide is whether the Subordinate Judge was competent to restore the appeal; because until it was restored no further action upon the security petitions could have been taken. Security is demanded from an appellant under Order 41, Rule 10 and Sub-rule (2) of that rule requires that if there is default in furnishing security the Court shall reject the appeal. Having rejected it, is the Court competent to restore it if sufficient cause for the failure to furnish security within the time allowed is shown? It has been suggested that this power may be derived in two ways : (a) by reviewing the order of rejection under Order 47, Rule 1 and (b) by applying the corresponding provision contained in Order 25, Rule 2 for the restoration of a suit by force of Section 107(2) of the Code. As regards the power to review it has been held by this Court in Vemareddi Ramamaraghava Reddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123 that the words 'other sufficient cause' in Rule 1 of Order 47 would not include such a ground as an explanation of default of appearance and this is in accordance with the judgment of the Privy Council in Chhajju Ram v. Neki I.L.R. (1922) Lah. 127 : 49 I.A. 144 : 1922 43 M.L.J. 332 which lays down that these words must mean something ejusdem generis with what precedes them. Even the learned Judges who decided Sundar v. Habib Chik I.L.R. (1920) All. 626 which it may be noted was prior to the Privy Council judgment, leave the question open whether in such circumstances the order could be reviewed. It is unnecessary further to discuss this point as I Have come to the conclusion, though not without sortie hesitation, that the order restoring the appeal may be justified upon the second ground. At first sight I was inclined to accept the appellant's argument that since there is no provision in Order 41, Rule 10 corresponding to that in Order 25, Rule 2(2), enabling a suit to be restored, it must be concluded that the intention was not to confer a power of this kind upon an Appellate Court. Where a power might have been, but has not been expressly conferred, it must be deemed, it is said, to have been withheld. If all the provisions relating to appellate procedure were self-contained, this argument, I think, might be conclusive. But that is not Sections 107 of the Code invests an Appellate Court with the same powers and duties as are conferred and imposed upon a Court of Original Jurisdiction subject to such conditions and limitations as may be prescribed by rules under the Code. Subject, therefore, to anything which the rules may have to say, it follows that since a Trial Court may restore a suit dismissed for failure to furnish security, so also may an Appellate Court restore an appeal rejected for the same reason. We have thus to consider whether the rules deprive an Appellate Court of a power which, but for them it would possess under the Code. This aspect of the matter does not seem to have been brought to the attention of the learned Judges who decided Sankaralinga Chetti v. Annamalai Chetti (1908) 19 M.L.J. 304. It was suggested by my learned brother during the course of the argument, and to him also is due an elucidation, which I think may be accepted, of the existence of an express provision in the rules for the taking of security in appeals, while no such provision occurs empowering restoration of an appeal rejected for failure to furnish it. It is a sufficient reason for the presence of Sub-rule (1) of Rule 10 of Order 41 that the circumstances in which security may be taken in an appeal differ widely from those in which it may be taken in a suit. The desired object could not, therefore, have been achieved by leaving Section 107 to operate upon Order 25, Rule 2(1). But it may be so left to operate, so far as Sub-rules (2) and (3) of that rule are concerned, because the terms of those sub-rules are appropriate to the case of appeals. Nor does any reason occur to me on principle, why an Appellate Court should not possess this power of restoration. The circumstances of the present case appear to me to afford an illustration of the necessity for it.
4. I have only to add that, even if the view we take be erroneous, the case is not such as would justify us in exercising our discretion to revise under Section 115, Civil Procedure Code. The Civil Revision Petition and Civil Miscellaneous Appeal are accordingly dismissed, subject to the order which my learned brother is going to propose in the matter of costs.
Ananthakriskna Aiyar, J.,
1. The plaintiff (Rukmani Ammal) instituted the original suit to recover money due under a promissory note. The District Munsif having dismissed the suit on the merits, she preferred Appeal No. 142 of 1925 on the file of the Subordinate Judge. While the appeal was pending, the defendant-respondent applied to the Lower Appellate Court for an order directing the appellant to furnish security for the costs decreed to him in the first Court and for the probable costs of the appeal. The security that was first tendered was found to be insufficient and she was ordered to furnish further security by the 13th of February, 1926. On that date the application was called at 11-15 A.M., but the appellant and her vakil being absent, the learned Subordinate Judge passed the following order:
Appellant and her vakil are absent - security not given - the appeal stands dismissed with costs.
2. It was mentioned to us that the appeal was posted for hearing for the 23rd February, 1926, but as security was not given, the appeal was dismissed with costs on the 13th February, 1926. On the 16th March, 1926 (the 14th and 15th of March being public holidays) Rukmani Ammal filed three applications before the Lower Appellate Court (I.A. Nos. 969, 970 and 971 of 1926) praying in effect, in one of the petitions, to set aside the order passed on default of her appearance and to rehear; in the other, to review under Order 47, Rule 1; and in the third to extend the time for completing the security that she had to furnish in accordance with the order of Court. In paras. 5 and 6 of the affidavit filed by her in support of the application, she stated as follows:
When the petition was called on 13th February, 1926, my vakil was not present as he was engaged in the District Court in connection with another case. Being a female, I too did not attend Court that day. Thereupon an ex parte order was passed on the petition that as security was not furnished the appeal was dismissed. I have now furnished fresh security.
3. She also alleged in her affidavit the reasons for her not having furnished security in time and why she wanted a further extension of time. The learned Subordinate Judge accepted her explanation, set aside his previous orders, dated 13th February, 1926, restored the appeal and extended time for furnishing security and directed the security tendered by her to be tested. In the course of his order he stated as follows:
I think I can accept the explanation and condone the default. I set aside my order and give the appellant time to furnish security. This entails the restoration of the appeal.
4. The defendant-respondent before the Lower Appellate Court has preferred to the High Court C.M.A. No. 211 of 1927 against the order in I.A. No. 970 passed on review under Order 47, Rule 1, and he has preferred C.R.P. No. 211 of 1927 against orders passed in I.A. No. 969 setting aside orders passed on default of appearance and extending time for furnishing security.
5. Mr. T.V. Muthukrishna Aiyar, the learned vakil who has appeared for the appellant before us argued that Order 47, Rule 1 did not apply to the present case having regard to the recent decision of the Privy Council reported in Chhajju Ram v. Neki I.L.R. (1922) Lah. 127 : 49 I.A. 144 : 43 M.L.J. 332 explaining the meaning to be attached to the words 'other sufficient reason' occurring in Order 47, Rule 1. He also relied on the decision reported in Vemareddi Ramaraghava Reddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123 where it was held that default of appearance was not the reason contemplated by Order 47, Rule 1 of the Civil Procedure Code, nor was it analogous to any such reason. He also laid stress on Order 41, Rule 10, Clause (2), which enacts
Where such security is not furnished within such time as the Court orders, the Court shall reject the appeal.
6. The learned vakil urged that the Subordinate Judge had no jurisdiction to interfere with the order once passed by him rejecting the appeal. The decision in Sankaralinga Chetti v. Annamalai Chetti (1908) 19 M.L.J. 304, Firozi Begam v. Abdul Latif Khan I.L.R. (1908) All. 143 and Hari Bhabini Debi v. Narendra Nath Roy 67 Ind.Cas. 883 were quoted in support of the appellant's contentions.
7. On behalf of the respondent Mr. Section Ramaswami Aiyar raised a preliminary objection to the effect that an appeal C.M.A. No. 62 of 1927 does not lie in this case since the ground on which the Subordinate Judge granted the application for review was not among the grounds mentioned in Order 47, Rule 7 conferring a right of appeal to the aggrieved party from an order granting a review application. He relied on the decisions of the Allahabad High Court reported in Sundar v. Habib Chik I.L.R. (1920) All. 626 and of the Calcutta High Court in Goljan Bibi v. Nafar Ali (1917) 28 Cal. L.J. 163. The learned vakil also urged that orders having been passed on the default of appearance of the plaintiff and her pleader on 13th February, 1926, the Court had jurisdiction to set aside the orders passed on 13th February, 1926, on being satisfied that there was sufficient cause for the said non-appearance. He also relied on Order 25, Rule 2, Sub-clause (2) of the Civil Procedure Code read along with Section 107(ii).
8. After having given the case my best consideration I have come; to the conclusion that we should not interfere with the orders passed by the Subordinate Judge on I.A. Nos. 969, 970 and 971 by which he set aside his prior order of 13th February, 1926, with the result that the appeal was restored to file and further time was allowed for completing the security.
9. Having regard to the decision of the Privy Council reported in Chhajju Ram v. Neki I.L.R. (1922) Lah. 127 : 49 I.A. 144 : 43 M.L.J. 332 the words 'any other sufficient reason' occurring in Order 47, Rule 1 have to be interpreted as meaning any reason sufficient on grounds at least analogous to those specified immediately previously in the said rule. The decision in Vemareddi Ramaraghava Reddi v. Rajah of Venkatagiri (1926) 52 M.L.J. 123 is to the effect that default of appearance is not a reason contemplated by Order 47, Rule 1, nor is it analogous to any such reason. It would, therefore, seem to follow that the Lower Appellate Court was not right in invoking its jurisdiction under Order 47, Rule 1 (review). The ruling in Sundar v. Habib Chik I.L.R. (1920) All. 626 was before the decision of the Privy Council in Chhajju Ram v. Neki (1922) I.L.R. 3 Lah. 127 : 49 I.A. 144 : 1922 43 M.L.J. 332. In Goljan Bibi v. Nafar Ali (1917) Crial. L.J. 163 it is only stated
that it was not disputed that the Judge had jurisdiction to re-admit the appeal after having dismissed it by an order under Clause (2), R. 10 O. 41.
10. The provision of law under which the Judge had such jurisdiction is not mentioned. Hari Bhdbini Debt v. Narendra Naith Roy (1922) 67 IND.CAS. 883, does not discuss the question though the Court held that there was no jurisdiction to extend time for furnishing security after the appeal had been dismissed. The decision in Sankaralinga Chetti v. Annamalai Chetti (1908) 19 M.L.J. 304 while holding that the decision of the Privy Council in Balvant Singh v. Daulat Singh? I.L.R. (1886) All. 315 : 13 I.A. 57
was arrived at on a particular state of facts and is not in our opinion an authority for the position that an appeal duly rejected under Section 549 of the Civil Procedure Code can be restored by the Court which rejected it
11. proceeded to State as follows:
that as pointed out in Firosi Begum v. Abdul Latif Khan I.L.R. (1908) All. 143 there is no provision in Section 549, Civil Procedure Code, similar to that contained in Section 381 and permitting an appellant whose appeal has been rejected under Section 549 to apply for an order setting the dismissal aside, nor have we been referred to any provision elsewhere in the Code under which such an application will lie.
12. We may in this connection refer to the decision of Mukerji and Buckland, JJ., in Ramesh Chandra Das v. Sarada Kripa Lala I.L.R. (1921) C. 355 to the effect that an order rejecting an appeal under Order 41, Rule 10, Civil Procedure Code, for failure to furnish security for costs is not appealable either as a decree or as an order. It would, therefore, seem to follow if the contentions urged on the appellant's side and the decisions mentioned above be accepted that a party, whose appeal has been rejected on the ground that security for costs was not furnished within such time as the Court ordered, has no further remedies open to him. It was suggested that the matter was one for the legislature and that the Courts had no power to grant any relief, whatever sufficient reason the party might have for not having furnished the security within the time allowed.
13. In the present case, it is true, there was this additional circumstance, viz., there was also default of appearance on the part of the appellant and her pleader so that the Court could set aside the prior orders on being satisfied that the party had sufficient cause for not appearing on the due date. But I should like to consider whether there is any general provision of law by which the Court could grant relief in cases where orders had been passed by it under Order 41, Rule 10. In the case of suits (not appeals) there is the specific provision made in Order 25, Rule 2, Sub-Section (2) which runs as follows:
Where a suit is dismissed under this rule, the plaintiffs may apply for an order to set the dismissal aside, and if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing the security within the time allowed, the Court shall set aside the dismissal upon, such terms as to security, costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.
14. Such a provision does not find a specific place in Order 41. It is, therefore, argued on behalf of the appellant that Rule 10 of Order 41 is exhaustive of the powers of the Appellate Court in matters relating to security for costs in an appeal, and that as the Legislature has enacted Rule 10 of O. 41 without incorporating in it any provision analogous to Order 25, Rule 2, Sub-clause (2) therefore the Court is not entitled to travel outside the provisions of Order 41, Rule 10; and that the result is inevitable where such security is not furnished by the appellant within such time as the Court orders, the Court shall reject the appeal and that the appellant has no further remedy open in such cases.
15. It seems to me, however, that under Section 107, Clause (2), Civil Procedure Code, the Appellate Court has the same powers and is to perform as nearly as may be the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of Original Jurisdiction in respect of suits instituted therein. I think that this provision confers on the Appellate Court similar powers in respect of appeals rejected on the ground that security had not been furnished within the time allowed as are conferred on the Original Court by Order 25, Rule 2, Sub-clause (2) when a suit is dismissed on the ground of failure by the plaintiff to furnish security within the time fixed by the Court. I am of opinion that the Appellate Court has got the power to set aside the dismissal of an appeal upon such terms as to security, costs or otherwise as it thinks fit, if it is proved to its satisfaction that the appellant was prevented by any sufficient cause from furnishing the security within the time allowed. The attention of the Court in Sankaralinga Chetti v. Annamalai Chetti (1908) 19 M.L.J. 304 was not drawn to this provision of law, since the Court specifically remarked that it had not been referred to any provision elsewhere in the Code under which such an application will lie.
16. The appellant's learned vakil argued that Section 107, Civil Procedure Code could not apply to cases of appeals, because he argued, if it did apply there was no necessity to enact Order 41, Rule 10 at all since the provisions of Order 25 relating to the suits would, according to Section 107(ii), apply to appeals also. There is an answer to this contention. The power of the Court of first instance to demand security from plaintiffs is confined under Order 25 to cases of plaintiffs who are residents out of British India and to plaintiffs who are females in suits for money. The powers conferred by Order 41, Rule 10 on an Appellate Court are far wider, as the wordings of Rule 10 would show, so that the legislature had to enact a separate provision. Conferring on Appellate Courts in respect of appeals wider powers than those conferred on Courts of first instance in respect of suits having thus made a specific provision in Order 41, Rule 10, conferring on Appellate Courts far wider powers in the matter of directing appellants to furnish security for costs, the legislature has left the other provisions relating to such matters to be attracted and incorporated by the general provision regarding Appellate Court's powers mentioned in Section 107(ii), Civil Procedure Code. There is no special reason why Courts of first instance should have the special power mentioned in Order 25, Rule 2, Sub-clause (2) and why Appellate Courts should not have that power. One should not consider the present as a case of casus omissus if it could be brought under any existing provision of law. For, as stated by Lord Fitzgerald in Mersey Docks and Harbour Board v. Henderson Brothers (1888) 13 A.C. 595
We ought not to create a casus omissus by interpretation save in some cases of strong necessity.
17. See also Broom's Legal Maxims, 8th edition, page 33.
18. I have on the whole come to the conclusion that in the present case the Lower Appellate Court had jurisdiction to pass the orders in question; in any event I do not think that the present is a case in which we should interfere in the exercise of our power of revision, since I think that substantial justice has been done in the case as the result of the Subordinate Judge's orders.
19. As regards costs, I would make no orders as to costs of the proceedings in the High Court; but I would direct the plaintiff-appellant before the Lower Appellate Court to pay the respondent in the Lower Appellate Court the costs incurred by him in connection with I.A. No. 970 of 1926, including such pleader's fee as the Lower Appellate Court may fix in the matter, since the prayers in the several petitions Nos. 969 to 971 of 1926 are not all such as could be granted, and also because the whole trouble was caused by default of appearance on her part on the 13th February, 1926. Subject to this modification as to costs in I.A. No. 970 of 1926, I would dismiss both the appeals and revision petition but without costs in the High Court.