1. I have had the advantage of reading the judgment which my learned brother is about to deliver and I agree with him that the learned Judge's dismissal of the appeal cannot be supported on its merits and that the order he should have passed under Rule 75 of the Appellate Side Rules was to direct the posting of the appeal before a Bench of two Judges for disposal or orders under Order 41, Rule 18 of the Code of Civil Procedure.
2. But when the learned Judge took the mistaken course of himself dismissing the appeal, the appellant did not at once appeal against that dismissal and obtain the decision of a Bench under the Letters Patent, but chose instead to apply under Order 41, Rule 19. Then the learned Judge could consider only whether it was proved that the appellant was prevented by sufficient cause from making the necessary deposit, and, as he did not find sufficient cause established, he could only dismiss the application. We also, dealing with an appeal against his order, are in my opinion confined to the grounds of decision open to him, and have no jurisdiction to consider others. On these grounds the Letters Patent appeal is unsustainable.
3. We ought not in my opinion in this case to treat an appeal from one order passed on one date, as we are asked to do, as from another order passed on an earlier date, on the ground either that the appellant's mistake is merely formal or is pardo-nable. For it is not a matter of form to consider a ground of appeal, which is inadmissible in the appeal actually preferred or to. deprive the respondent of the valuable advantage he has obtained in consequence of the appellant's failure to appeal against the earlier order in time. The question whether the appellant's mistake is pardonable can be considered with reference to Section 14 or any other provision of the Limitation Act, when an appeal against the earlier order is filed. It would be premature to deal with it at present.
4. In my opinion this appeal should be dismissed with costs.
5. On the 8th of August 1912 C.M.A. No. 107 of 1912 out of which the present Letters Patent Appeal arises was posted under Rule 75 of the High Court (Appellate Juris-diction) for the orders of the Admission Court presided over by Sankaran Nair, J. On the case being called on, no one appeared. The learned Judge then passed the order that the Civil Miscella-neous Appeal be dismissed.
6. Subsequently on 6th September 1912 a petition (C.M.P. No. 2118 of 1912) was filed praying that the Civil Miscella-neous Appeal so dismissed for non-appearance should be readmitted on the file and disposed of ' in the usual course under Order 41, Rule 19.' This petition came on for hearing before the same learned Judge on 6th December 1912 who dismissed it saying that no reason was alleged for re-admission of the Civil Miscellaneous Appeal.
7. It is argued before us that under Rule 75 the learned Judge had no power to pass the order dismissing the Civil Miscellaneous Appeal but that he could only have directed (in the words of the rule) that the appeal be posted before a Bench of two Judges for disposal or orders under Order 41, Rule 18; and that we ought in this Letters Patent Appeal to vary the order passed by the learned Judge so as to make it conform with the rule.
8. The respondent objects that the petition C.M.P. No. 2118 of 1912 was misconceived, purporting as it did to be under Order 41, Rule 19 of the Civil Procedure Code. That rule it is argued is applicable only to the three case's mentioned in it, and that it has consequently no application to the dismissal of Civil Miscellaneous Appeal No. 1079 of 1912 on the 8th August 1912. It is argued that the only course open to the appellant was to have filed a Letters Patent Appeal immediately from the order of August 1912 and not to have made any intermediate application for the re-admission-of the appeal. The result of the misconceived petition for re-admission is stated to be that the short period of limitation allowed by Rule 48 of the High Court (Appellate Side) is in this manner violated, and that the Letters Patent Appeal is thus sought to be filed on 2nd January 1913. from an order that should have been appealed against within 30 days of 8th August 1912.
9. This objection may be considered under two heads. In the first place it is urged that the present appeal purports to be from the order rejecting the petition to re-admit the appeal that it should have been from the first order dismissing the appeal for want of appearance. This is a matter at best merely of form. It has not prejudiced the respondent, certainly not prevented the whole of his case being presented in exactly the same manner as if the appeal had been from the earlier order. The arguments adduced to us on behalf of the respondent included all the arguments he had to urge in support of the first order. Besides I confess I am by no means clear that there was any error in assuming that the appeal should be from the last order made by the learned Judge who was seized of the matter, especially as the final order was a restoration of the earlier; and in each case the learned Judge did not purport to pass an inter-locutory order but dismissed the appeal; being evidently under the impression that he was proceeding under O. XLI, Rule 17. The learned Judge having wrongly assumed the proceeding to be under O. XLI, Rule 17, it was his error, it seems to me that attracted O. XLI, Rule 19 and allowed of an application for restoration. The form of the learned Judge's order made an application under O. XLI, Rule 19 open to the appellant. Taking advantage of this opportunity the appellant applied for restoration, and as the learned vakil informs us he also drew the attention of the Admission Court to the incorrectness of the order even accepting the correctness of the facts found by it. Therefore the proper course for the learned Judge sitting in the Admission Court, was, it seems to me, to have rectified the error in the record, though he might not have been willing to hear the application or to change his opinion on the merits of the application for extension of time. On this ground it seems to me that a Court hearing an appeal from the latter order of the learned Judge might do that which the learned Judge himself might have done, and alter his first order to the extent of bringing it into confirmity with Rule 75; in appeal we might deal with the correctness of the order of December 1912 as it stands and are not restricted to a consideration of the question whether any order at all should have been made without giving to the appellant an opportunity to be heard. We may consider the question whether assuming that the learned Judge was right in refusing to hear the appellant's reasons for extension of time, he was right in passing the order without hearing the appellant. The order passed on the 6th December 1912 must it seems to be taken to have incorporated into itself the earlier order of August 1912, and in appeal we ought to consider the correctness of the whole order subject to a question of limitation with which I shall deal immediately. If this had been a Letters Patent Appeal from the order dismissing the appeal in the first instance without any application for restoration it might have been reasonably though I do not say successfully urged that there was an easier remedy available to the appellant which he ought to have first exhausted. Even if for the purposes of this part of the argument, it is assumed that the application was misconceived, under Rule 48 (1) of the High Court Rules, Appellate side, it seems to me that the pendency of the petition for restoration would be good cause for granting further time. I am certainly not prepared to say that the petition for restoration in the present case would not fall within the principle laid down in Section 14 of the Limitation Act. There remain two other arguments by which the respondent seems to support the order dismissing the appeal. These are based on the interpretation of Rule 75. It is argued that the learned Judge had power to dismiss the appeal on the 8th August 1912 because Rule 75 applies only on the appellant or his pleader ' failing ' to satisfy the Court that there was just and reasonable excuse, and that there cannot be ' failure' when there is no appearance at all. It is enough to state this argument. It is not necessary to refute it. The second argument is that the rule says that the Court ' may' direct that appeals be posted before a Bench and that this cannot be construed as having the effect of 'shall direct'.
10. So far the argument may be accepted. But the result of this interpretation is alleged to be that the Court had the power also to dismiss the appeal. This result does not follow. The rule expressly lays down the more limited power of the Court to have the appeal posted for disposal or orders, and this must imply that the Court has not any wider powers which are not expressed, viz., the power of itself dismissing the appeal.
11. Shortly stated, it seems to me that the learned Judge had no power to dismiss the appeal, and that the form of the order entitled the appellant to apply to the learned Judge by petition for restoring the appeal; but even if he was not entitled, he has not lost his remedy by Lettets Patent Appeal; and that for the purposes of this appeal it is reasonable to construe the order of the 6th December 1912 as incorporating the earlier order, so that when the correctness of the latter order is considered the earlier order may also be referred to as part of the latter, and be varied if necessary.
12. In my opinion therefore the only order that can be made in this Letters Patent Appeal is the order that the learned Judge should have made on the 8th August 1912 and the 6th December 1912 i. e., that the appeal be posted before a Bench of two Judges for disposal or orders under Order 41, Rule 18.
Oldfield and Tyabji, JJ.
13. In the result the Letters Patent Appeal is dismissed with costs.