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Mrigendra Nath Bir and ors. Vs. Dibakar Bir and Satish Chandra Ghose and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal1231,97Ind.Cas.573
AppellantMrigendra Nath Bir and ors.
RespondentDibakar Bir and Satish Chandra Ghose and anr.
Excerpt:
c.p.c. (act v of 1908), order ix, rule 13 - appeal-dismissal for default--pleader's miscalculation-pleader engaged in another court, if sufficient cause for restoration. - ewart greaves, c.j.1. this is an appeal against the order of the district judge of bankura of the 27th september, 1924 refusing to restore an appeal. the appeal which, was only a few months old came on for hearing on the 20th september, 1921. no one appeared on behalf of the appellants and the respondent being present the learned district judge made an order dismissing the appeal with costs. the order wa3 made at about 1 o'clock or a few minutes thereafter. a week after, namely, on the 27th september the appellants applied for re-admission of the appeal. the order passed by the district judge was that he saw no good reason to set aside the order of dismissal and he accordingly rejected the application and it is against this order that the present appeal is preferred. the petition upon.....
Judgment:

Ewart Greaves, C.J.

1. This is an appeal against the order of the District Judge of Bankura of the 27th September, 1924 refusing to restore an appeal. The appeal which, was only a few months old came on for hearing on the 20th September, 1921. No one appeared on behalf of the appellants and the respondent being present the learned District Judge made an order dismissing the appeal with costs. The order wa3 made at about 1 o'clock or a few minutes thereafter. A week after, namely, on the 27th September the appellants applied for re-admission of the appeal. The order passed by the District Judge was that he saw no good reason to set aside the order of dismissal and he accordingly rejected the application and it is against this order that the present appeal is preferred. The petition upon which the application of the 27th September, 1924, was made is before us and it appears that the Pleader who had been engaged on behalf of the appellants was absent in another Court arguing a small appeal with regard to mesne profits. Apparently he miscalculated and was not able to appear when the appeal was called on before the District Judge. Under these circumstances I should have thought that as a matter of course the appeal should have been restored. There was no wilful default or no real carelessness such as would justify the order refusing to restore the appeal. But apparently the learned District Judge has thought otherwise and thought it necessary to put the parties to the expense of an appeal to this Court.

2. It is urged before us on behalf of the respondent that the reasons shown are not sufficient causes for our interference with the order of the District Judge or for restoration of the appeal, and there is some case that is said to have been decided by two Judges in this Court which has laid down this proposition. We have not seen the decision but I cannot believe that any such general proposition was laid down by any Bench of this Court. If I am wrong in that assumption then I think that decision was not correct. The case is not a reported case and is only reported in some unauthorized reports which are not permitted to be cited in this Court, and under the circumstances as I have already stated we have not been able to refer to it. I think we have ample jurisdiction in cases of this kind to restore an appeal and that there is sufficient cause within the proper meaning of these words.

3. The result is that the appeal succeeds, and we make an order directing that the appeal should be restored for hearing and heard and decided on its merits. We make no order as to costs of this Court. But the order for costs made by the lower Court will stand. These costs must be paid by the appellants if they have not already been paid as a condition precedent to the hearing of the appeal.

Mukerji, J.

4. I agree.


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