1. This is an appeal from an order of the District Judge of the Assam Valley Districts, dated the 28th November 1925 dismissing an application for restoration of an appeal. The plaintiff-appellant brought a suit for recovery of a sum of money as the price of certain medicines. The trial Court gave a partial decree. There was then an appeal by the plaintiff to the District Judge and that appeal was registered and the usual notices were issued. Various orders were passed thereafter and on the 13th November 1925, an order was passed fixing the following day, the 14th November 1925, for the hearing of the appeal and it was directed that the appellant's pleader should be informed. On the 14th November the appellant's pleader was absent and his assistant, another pleader named B.C. Baroah, stated that he had no instructions. Thereupon the learned District Judge dismissed the appeal for non-prosecution. An application was then made by the appellant for restoration of the appeal. On the 16th November the hearing of the application was fixed for the 21st November 1925. No order bearing the date of 21st November appears on the order-sheet but on the 28th November the learned District Judge recorded an order to the following effect:
Application seen. I see no reason to restore the stay order or the appeal. In case of an appeal pending for so long the pleader concerned should have known that he could not expect an adjournment and should, therefore, have made arrangements for some of the pleaders to appear in his place if he could not himself appear.
2. The appeal was dismissed under Order 41, Rule 17, Civil P.C., and the procedure applicable, therefore, was the procedure prescribed under Rule 19 of that order. That rule lays down inter alia that where an appeal is dismissed under Rule 17 of the order, the appellant may apply to the appellate Court for re-admission of the appeal, and, where it is proved that he was prevented by any sufficient cause from appearing when the appeal was called on for hearing, the Court shall readmit the appeal. We are informed by the learned vakil for the appellant that on the 21st November which was the date fixed for hearing the application, the appellant and his witnesses were in attendance, but, as already stated, there is no order in the order-sheet relating to that date.
3. In my judgment it was not open to the learned District Judge to dismiss the application without giving the appellant an opportunity as required by Rule 19, Order 41. There was no proper hearing of the case. In my opinion the appeal succeeds and the only course is to send the case back to the learned District Judge to be disposed of in accordance with law. Costs of this appeal will abide the result of the application to restore. The hearing-fee is assessed at one gold mohur.
4. I agree.