Jawahir Singh and Another vs Debi Singh and Others

Blair and Burkitt, JJ.—This case came before us at first as an appeal u/s 588 of the CPC from an order passed u/s 558 refusing to readmit an appeal which had been dismissed u/s 556. At the hearing, however, it became immediately evident that the appeal could not be supported, as it was shown that the appellant and his pleaders were present when the appeal was called on for hearing in the lower Court. We therefore dismissed the appeal, and at the same time we allowed an application to be put in by the appellant u/s 622 of the Code for revision of the order below by which his appeal had been dismissed. That application having been admitted has now been heard, and we are of opinion that it must be allowed. It was contended for the opposite party that the appeal was dismissed on its merits. That, however, clearly was not so. From the terms of the order of the Court below on the application for re-admission of the appeal, and from the proceedings which then took place, it is evident that the Subordinate Judge intended to pass, and did pass, and believed he was passing, an order u/s 556 by which he dismissed the appeal for default. The words be used were--"for default of prosecution,"--but, as the appellant and his pleaders were present, and as one of the pleaders had addressed the Court, though, no doubt, he went to another Court soon after the commencement of his argument and did not return, and the other pleader refused to address the Court, we are of opinion that the Court below was wrong and acted illegally and with material irregularity in dismissing the appeal for default u/s 556.

We therefore allow this application, and, setting aside the order of the lower Court dismissing the appeal for default, we direct the record to be returned to the Court below with instructions to pass a legal order, namely, one simply dismissing the appeal without adding the words "for default" or "for default of prosecution." We make no order as to costs;