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Hemanta Kumar Bose Vs. Punchananchakravarti and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in57Ind.Cas.762
AppellantHemanta Kumar Bose
RespondentPunchananchakravarti and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 19 - appeal dismissed for default--application for restoration--procedure. - 1. this appeal is directed against an order by which the district judge of jessoredeclined to restore an appeal which had been dismissed in default. the reason assigned for the dismissal in default in the first instance was that the pleader had made a delay of 15 minutes in appearing before the court when the appeal was called on for hearing. in his application for restoration the appellant has offered explanation both of his own absence and also of the failure of his pleader to attend. we are of opinion that the learned district judge was wrong in dismissing this application without giving the appellant an opportunity of substantiating the facts on which he relied, and we may point out that it appears that the appeal was in the first instance filed on the 27th august 1918 and was finally.....
Judgment:

1. This appeal is directed against an order by which the District Judge of Jessoredeclined to restore an appeal which had been dismissed in default. The reason assigned for the dismissal in default in the first instance was that the Pleader had made a delay of 15 minutes in appearing before the Court when the appeal was called on for hearing. In his application for restoration the appellant has offered explanation both of his own absence and also of the failure of his Pleader to attend. We are of opinion that the learned District Judge was wrong in dismissing this application without giving the appellant an opportunity of substantiating the facts on which he relied, and we may point out that it appears that the appeal was in the first instance filed on the 27th August 1918 and was finally put down for hearing on the 10th December 1919. In the interval the hearing had been on eleven different occasions postponed because the Court was otherwise engaged and on one occasion at the instance of the respondent. There is certainly nothing in the order sheet to suggest that the appellant was not pursuing his appeal with due diligence.

2. For these reasons we set aside the order dismissing the application for restoration and direct that the application be sent back to the District Judge in order that it may be heard and disposed of in accordance with law.

3. Costs of this appeal will be costs in the case. We assess the hearing fee at one gold mohur.


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