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Robert Watson and Co. Ltd. Vs. Ambica Dasi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1900)ILR27Cal529
AppellantRobert Watson and Co. Ltd.
RespondentAmbica Dasi and ors.
Cases ReferredRam Chandra Pandurang Naik v. Madhav Purushottam Naik
Excerpt:
civil procedure code (xiv of 1882), sections 556, 558 - second appeal--order refusing to re-admit appeal--dismissal of appeal for default--pleader asking for time to go on with a case. - ramnipi and wilkins, jj.this is an appeal from an order of the district judge of midnapur, dated the 18th of april 1898, refusing to re-admit an appeal under the provisions of section 558 of the code of civil procedure. the facts of the case are these: this case, after several postponements, was called on for hearing before the district judge on the 25th of march 1898, and on that date the pleader.for the appellant said that he had received no instructions. he then proceeded to ask for two hours' time, as the case was a complicated one and involved considerations of interest to various classes of tenants. the application was refused, and the district judge accordingly dismissed the appeal. the appellant then' applied, under section 558, for the re-admission of the appeal which, as has.....
Judgment:

Ramnipi and Wilkins, JJ.

This is an appeal from an order of the District Judge of Midnapur, dated the 18th of April 1898, refusing to re-admit an appeal under the provisions of Section 558 of the Code of Civil Procedure. The facts of the case are these: This case, after several postponements, was called on for hearing before the District Judge on the 25th of March 1898, and on that date the pleader.for the appellant said that he had received no instructions. He then proceeded to ask for two hours' time, as the case was a complicated one and involved considerations of interest to various classes of tenants. The application was refused, and the District Judge accordingly dismissed the appeal. The appellant then' applied, under Section 558, for the re-admission of the appeal which, as has been said before, was rejected. The learned pleader for the appellant urges that the District Judge was wrong in refusing to give the pleader, who appeared before him, two hours postponement as asked for. He says that no doubt the District Judge had a discretion to allow this or to refuse it, and that he has improperly exercised his discretion; and he further calls attention to an affidavit of the mooktear of the plaintiff, showing that he had gone away on some business and was not able to instruct the pleader. Furthermore it was pointed out to us that the orders passed in this case were not brought to the notice of the pleaders for the appellant, and they were not made to sign those orders. We need not say much about these matters, but we must remark in passing that we cannot admit the justness of the last criticism. It is not the duty of the officers of the Court to call upon the pleaders to sign the orders issued, or to inform them of the nature of the orders passed.' It is for the pleaders to be present at the proceedings, and to make themselves acquainted with the orders passed. But we need not discuss these matters, because a preliminary objection has been raised by the learned pleader for the respondent to the effect that the appellant has mistaken his remedy, and that his remedy should have been, not by an appeal from the order of the 18th April 1898, but by a second appeal from the order of the 25th March 1898; inasmuch as the case was not decided ex parte, under the provisions of Section 556 of the Code of Civil Procedure, but was decided after the appellant's pleader had put in an appearance and had moved for the adjournment of the case.

2. We must admit the force of this contention. It would seem that had the pleader for the appellant merely informed the Court that he had no instructions and refrained from taking any steps in the case, the provisions of Sections 556 and 558 would have been applicable. But in this case he did more. He made an application for postponement, and it is his grievance in this case that the postponement was not granted. We think that Sections 556 and 558 do not apply; and in this connection we may cite the case of Shibendra Narain Chowdhuri v. Kinoo Ram Dass (1886) I.L.R., 12 Cal., 605. In this case it will be observed that the pleader, though present, was not prepared to go on, but he made no further application in the case; and so the provisions of Sections 556 and 558 were held to be applicable. In another case, that of Ram Chandra Pandurang Naik v. Madhav Purushottam Naik (1891) I.L.R., 16 Bom., 23, the same distinction was made. In this case, it is said that if the pleader for the appellant had stated that he had received no instructions, the Court could have held that there was no proper appearance. But that was not the case. The pleader for the appellant asked for an adjournment for certain reasons, and on this ground it was held that Sections 556 and 558 did not apply. Following this ruling, we consider that the contention of the pleader for the respondent in this case must prevail.

3. The appeal is dismissed with costs--One Gold Mohur.

4. This decision will also govern appeal No. 252 of 1898, which is also dismissed with costs--One Gold Mohur.


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