Ramnath Mandal and Others vs Atal Mandal and Others

Fazl Ali, J.—This is an appeal from an order passed by the District Judge of Manbhum, declining to restore an appeal which was dismissed for the default of the appellants on 15th November 1930. It appears that one of the dates fixed for the hearing of the appeal was 17th September 1930. On that date the learned Judge appears to have been engaged in trying another case and so the appeal was adjourned to 15th November 1930.

On the 15th November the pleader appearing for the appellants informed the Court that he knew nothing about the appeal and that his clerk had not told him that it was fixed for that day. The learned judge however thought that the excuse was not sufficient and so dismissed the appeal. Thereupon on 27th November 1930 the appellants applied to the learned Judge for the restoration of the appeal and in their application they set out certain facts which were supported by an affidavit.

Among other facts they stated that the adjourned date had been noted on a slip by one Khepakar Mukharji who had looked into the cause list and that one Babu Nibaran Chandra Majumdar, a local mukhtar who was looking after the case, was also present with the applicant and Khepakar Mukharji when the latter looked into the list and noted the adjourned date in the diary. It was stated that it was this mukhtar who had given the corresponding Bengali date to the applicant on consulting his diary.

It was further stated that on the 17th September the pleader who was engaged on behalf of the applicants was not in Purulia and that they had been told that there was no chance of the case being taken up and so they did not approach any other pleaders. The applicants also drew the attention of the Court to the fact that there had been no negligence on their part on any of the previous dates and they accordingly asked the Court to restore the case and hear the appeal on the merits.

The learned Judge merely looked into the cause list of the 17th September and being satisfied that the adjourned date, namely, the 16th November was clearly and correctly written there, he was of opinion that the failure to appear on the part of the appellants was due to nothing but their carelessness or that of their agent or mukhtar. He accordingly dismissed the application summarily.

The only question to be considered is whether in view of the allegations made by the applicants in their petition the learned Judge should have dismissed the application summarily without giving an opportunity to the applicants to examine the persons mentioned in their application of the 27th November. The learned Judge relied on the cause list, but he overlooked the fact that a bona fide mistake may have been made about the date even though the cause list may have been referred to.

In my opinion this was a case in which the learned Judge should have given an opportunity to the appellants to prove their case and the application for restoration of the appeal should not have been dismissed summarily.

I would therefore set aside the order passed by the learned Judge on 6th December 1930 and send the case back to him for disposal according to law after giving an opportunity to the parties to adduce such evidence as they may think fit. Costs will abide the result.

Courtney-Terrell, C.J.

I agree.