Narain Chandra Khan vs Jagannath Acharya Goswami and Others

Manohar Lall, J.—This is an appeal against an order of the learned District Judge of Manbhum Singhbhum, refusing to restore an appeal (which had been dismissed for default) under the provisions of Order 41, Rule 19, read with Section 151, Civil P.C.

The appellant, we are informed, is a transferee of a certain interest in a tank which was the subject-matter of a litigation between his vendor and the respondents, he having purchased the rights in respect of that tank after the disposal of the suit in favour of the respondents by the trial Court and after the defendant (the vendor of the appellant) had preferred an appeal before the learned District Judge which was numbered as Title Appeal No. 55 of 1936.For some reason that appeal was allowed to be dismissed for default of the appellant, that is to say of the vendor of the appellant before us.

On 8th February 1937, the present appellant filed an application before the learned District Judge asking for restoration of Title Appeal No. 55 of 1936 which it may be noticed was dismissed for default on 8th January 1937. The learned District Judge fixed 13th March 1937, for issue of notice on the opposite party, and, when on that date he found that it was not proved that respondents 15 to 21 had been served with notices, he adjourned the matter till 3rd April 1937, and on that date the then appellant filed a petition for time. But when the matter was taken up for disposal, nobody appeared on his behalf and therefore the learned District Judge dismissed the application for restoration for default on the same day. The present appeal is against the order of 3rd April 1937.

It is argued strenuously on behalf of the appellant that the learned District Judge had no jurisdiction to dismiss the application for restoration, because by virtue of the provisions of Section 146, Civil P.C., the appellant bad a right to do what his vendor could have done, namely in the present case to file an application for restoration under Order 41, Rule 19.

The learned advocate relies in support of his contention upon the decision in Sitaramaswami v. Lakshmi Narasimha AIR 1919 Mad. 755 which deals with a different set of circumstances. In that case what happened was that the appeal to the District Judge had been filed by the appellant who had obtained a transfer or assignment of the interest of one of the parties to the litigation while the matter was pending in the trial Court. The learned District Judge had refused to allow the transferee to file the appeal, but this order was reversed by the High Court holding that by virtue of the provisions of Section 146, Civil P.C., the effect was that the person in the position of the appellant in that case had an undeniable right to prefer an appeal which his assignor could have preferred. It will be noticed that in that case the appeal was being preferred for the first time by a person entitled to do so, be he the assignor or be he the assignee, but in either case it was an aggrieved party.

In the present case the circumstances are entirely different, and I am unable to see how the appellant relies upon the provisions of Order 41, Rule 19 which, as pointed out in the course of the argument, contemplates that the applicant who wants his appeal to be restored has to prove, first, that the appeal was his, and, secondly, that he was prevented by sufficient cause from appearing when his appeal was called on for hearing.

In the present case it is admitted that the appeal was not filed by the present appellant but by a different party, and it was open to that party when the appeal was called on for hearing to appear or not. I do not see how the present appellant can be heard to say that there was sufficient cause for the non-appearance of another person who was in full seisin of his own litigation in his own right. If the case of the appellant before us is accepted, the interest of the person, through whom he claims relying upon Section 146, is not identical with his interest in that while the appellant wants to go on with the appeal his vendor does not or did not wish to prosecute it. Upon those grounds I think there are no merits in this appeal whether it is treated as an appeal or as an application in revision.

It was then argued that the appellant has no remedy whatsoever and that he must be assisted in the ends of justice. Apart from the fact that it is very difficult to decide what the ends of justice are, it is impossible for this Court to give any relief to the appellant if he has no remedy in law. If he has any other remedy by which he can reach his just relief, it is of course open to him to pursue that remedy, if he is so advised, in a proper manner in an appropriate proceeding.

The result is that the appeal fails and must be dismissed with costs.

Wort, Ag. C.J.

I agree.