(Firm of) Jainarain Ramjash vs Sitaram Marwari and others

Mullick, J.—The suit out of which this application arises was brought by Sitaram Marwari and three others in the Court of the Additional Subordinate Judge of Dhanbad against Jainarain Ramjash for recovery of Khas possession of surface rights of some lands and for the issue of a permanent injunction and for Rs. 1,000 on account of damages for subsidence. On the 28th February 1922, the Additional Subordinate Judge decreed the suit in full and on the 28th March following the Defendants appealed against his decree to the District Judge of Manbhum. The hearing of the appeal was fixed for the 21st April 1922 when it was again adjourned till the 6th June. On the 6th June, in consequence of a telegram received from the Appellant''s vakil, the appeal was postponed to the 20th July. On the 19th July, which was a Wednesday, the Appellant''s vakil again sent a telegram asking that the case should be postponed till the following Monday. This the District Judge declined to do and he directed that the parties should be ready on the following day which was the adjourned date fixed for the hearing. On the 20th July, Babu Chandra Sekhar Patra, the junior pleader engaged by the Appellants, filed a petition for time on the ground that his senior, Babu Lalit Kumar Mitra, was still unable to appear and that he had been endeavouring to engage another senior pleader but had not been successful. The District Judge refused to grant any further adjournment and called upon the junior pleader to argue the appeal, This, the junior pleader said, he was unable to do. The Court thereupon passed the following order. "Pleader for Appellant states that he cannot argue the appeal Vakil for Respondents ready. The appeal is dismissed for default with costs.

On the 23rd October, the present application was made for the exercise of the Court''s Revisional Jurisdiction u/s 115, C.P.C.

It is contended that in the circumstances the District Judge had no jurisdiction to make an order under O. 41, R. 17, C.P.C., dismissing the appeal for default and that he had jurisdiction only to write a judgment and to dispose of the appeal on its merits. I very much doubt whether this is a case in which any question of jurisdiction is involved, but a part from that preliminary objection I think on the merits the Petitioners have no case.

In the first place, in my opinion, the learned Judge was quite right in treating the case as one of non-appearance. Babu Chandra Sekhar Patra, when asked to argue the appeal, declined to do so on the ground that the case was too difficult for him. He was certainly present in Court; but that was not sufficient. Whether he was instructed to apply for an adjournment only or whether his instructions were to argue the appeal if he felt himself capable of doing so is immaterial, the legal position would not have been different if he had been unable to argue by reason of illness and in law there was no appearance by him. Although the decisions on this point in the various High Courts are not uniform, I think the Full Bench of the Calcutta High Court laid down the correct rule in Satish Chandra Mukerjee Vs. Ahara Prasad Mukerjee, and I think that in order to constitute appearance by a pleader it is necessary to show that the pleader was ready to place materials before the Court Upon which the Court could apply its judicial mind see Shaikh Muhammad Bakar Ali v. Gulhai Mahto [1919] 4 P.L.J. 712: 52 I.C. 290. It follows that the question in every case will turn upon the facts and in the present case I am satisfied that there was no appearance within the meaning of O. 41. That being so, that order of dismissal for default was right.

Whether the learned Judge was right in the circumstances in refusing further time is a question which does not arise in an application under S. 115, C.P.C., but looking at the facts placed before us I cannot see what else the learned District Judge could have done. The senior pleader was unable to attend on the 6th June because he had another engagement and the case was adjourned at his request till the 20th. On the 19th, the Judge refused a prayer for further adjournment and warned the parties that the case would be taken up the following day. The junior pleader had full notice and I am altogether unable to understand why he did not make some effort to argue the case. In any event the Appellant had ample opportunity after the 6th June for engaging a practitioner who would have sufficient leisure and capacity to appear in the case.

The application therefore fails and is dismissed with costs; hearing fee two gold mohurs.

Kulwant Sahay, J.

I agree.