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Krishna Charan Mondal Vs. Chinibasi Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported inAIR1925Cal269
AppellantKrishna Charan Mondal
RespondentChinibasi Mondal and ors.
Excerpt:
civil procedure code (act v of 1908), order xli, rule 19 - appeal--dismissal for default--application for re-admission of appeal--proper procedure--court, duty of. - .....on the 9th june, 1922. on that date it appears that the present appellant had an appeal and a cross-appeal pending in that court and when the appeals were called on he was absent. the result was that the appeal was dismissed for default and the cross-appeal was decreed ex parte. on the same day an application was made to re-admit the appeal upon which the application was rejected summarily, the learned judge noting at the time that he had gone to the length of sending a peon to the bar library to find the pleader, but neither the pleader nor the client could be found. we think that in these cases the best course to adopt, and the shortest in the end, is to treat the application as miscellaneous matter and to give the applicant an opportunity to show that he was prevented by any.....
Judgment:

1. This appeal relates to an order of the Second Additional District Judge of Dacca, passed on the 9th June, 1922. On that date it appears that the present appellant had an appeal and a cross-appeal pending in that Court and when the appeals were called on he was absent. The result was that the appeal was dismissed for default and the cross-appeal was decreed ex parte. On the same day an application was made to re-admit the appeal upon which the application was rejected summarily, the learned Judge noting at the time that he had gone to the length of sending a peon to the Bar library to find the pleader, but neither the pleader nor the client could be found. We think that in these cases the best course to adopt, and the shortest in the end, is to treat the application as miscellaneous matter and to give the applicant an opportunity to show that he was prevented by any sufficient cause from being pre sent when the appeal was called on so as to comply with the provisions of Order 41, Rule 19, Civil Procedure Code. In the present case no such opportunity has been given to the appellant. Under the circumstances the appeal must be allowed and the case sent back to the lower Appellate Court to entertain the application for re-admission of the appeal upon the merits and to dispose it of according to law.

2. We make no order as to costs.


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