Lakhan Singh, Thakur vs Ram Singh and Others

Kendall, J.—This is an appeal from the order of the Subordinate Judge of Budaun dismissing an application under Order XLI, Rule 19 for the re-admission of an appeal which had been dismissed in default. When the appeal was called on for hearing neither the Appellant nor his Counsel was present, but later on the same day the Appellant filed an affidavit to the effect:hat the Counsel had been a few minutes late. The court however held that as the affidavit did not show what prevented the applicant and his Advocate from coming to Court earlier and in time, the Court did not accept the reason as a good one. Under Rule 19 of Order XLI the Court shall re-admit the appeal where it is proved that the Appellant was prevented by any sufficient cause from appearing when the appeal was called. In the present case the reason given in the affidavit is that the Advocate was a little late, and it is explained here that he was busy with cases and other work and he must have been delayed on his way to the Court etc. In other words he was unpunctual. It is also suggested that as the court did not always sit punctually, as it had other work to do, he expected that he appeal would not be taken up at 10-30. Not one of these reasons can be called a sufficient case to prevent him from appearing when the appeal was called. If he had been able to disclose a sufficient cause, no doubt he would have done so in his affidavit, and then the Court would have readmitted the appeal as it was bound to do under the rule. The order passed by the Court however is a perfectly reasonable one and in fact in the circumstances I think the court was bound to pass that order. The result is that the appeal fails and is dismissed with costs.