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Shiba Prosad Jana and anr. Vs. Hati Maitt - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in53Ind.Cas.585
AppellantShiba Prosad Jana and anr.
RespondentHati Maitt
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 9 - appeal--death of appellant--representatives not brought on record--abatement of appeal, setting aside of--fraud of agent, whether sufficient cause. - .....no sufficient reason for non appearance had been shown by the applicants and that if their mohurir had played false, they might sue him for compensation.5. we think that if the facts stated in the petition are true, they would constitute a sufficient reason for non-appearance within the meaning of order xxii, rule 9. the allegation of collusion made in the application has not been gone into and no evidence has been taken.6. in the circumstances we set aside the order of the court below and remand the case to that court in order that there may be an enquiry into the matter. both parties will be at liberty to adduce evidence.7. costs, one gold mohur, to abide the result.
Judgment:

1. This appeal is against an order refusing an application to sat aside the abatement of an appeal which was pending before the Subordinate Judge of Midnapore.

2. The appellant died on the 8th June 1917 and six months expired on the 8th December of that year. No application for substitution having been made within that period, an order of abatement was made on the 21st December and the present application was made on the 7th of January 1918.

3. The main ground upon which the application was that the appellants' agent Surja Narain, who had been sent for making an application for substitution, on the 6th December 1917, in collusion with the respondents, did not make the application and further that he informed the petitioners that the application had been made by him. The petitioners say that subsequently they came to know of this fraud and then they made the application.

4. The Subordinate Judge has not made any inquiry into these allegation?, but disposed of the application on the ground that no sufficient reason for non appearance had been shown by the applicants and that if their mohurir had played false, they might sue him for compensation.

5. We think that if the facts stated in the petition are true, they would constitute a sufficient reason for non-appearance within the meaning of Order XXII, rule 9. The allegation of collusion made in the application has not been gone into and no evidence has been taken.

6. In the circumstances we set aside the order of the Court below and remand the case to that Court in order that there may be an enquiry into the matter. Both parties will be at liberty to adduce evidence.

7. Costs, one gold mohur, to abide the result.


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