R.C. Krishnaswami Naidu and Others vs P. Chengalroya Naidu and Others

This is an appeal from an order of the Sub ordinate Judge of Chittore, dated 23rd September, 1921 re fusing to set aside an order dismissing an

appeal dated 4th March, 1921.

The facts are that the petitioner being the appellant in the appeal before that Court instructed a Vakil to appear and conduct his appeal. We will

assume on the evidence before the Court that this Vakil did not appear on 4th March, 1921, to conduct the appeal in pursuance of his instructions

by reason of the Vakil having taken up the attitude of non-co-operation with the Courts and we will also assume that the appellant did not come to

know of the order of the Court dismissing his appeal until sometime after it was dismissed and that he took immediate steps on making the

discovery to bring the matter before the Court. Assuming these facts to be correct, the appellant has suffered grave injustice, for his appeal, for no

fault of his own, has never been heard although it may be that he has a remedy against his Vakil for negligence. Under Order 41, Rules 17 of the

Civil Procedure Code, ""if on the day fixed the appellant does not appear when the appeal is called on for hearing, the Court may make an order

that the appeal be dismissed,"" and under Rule 19 where the appeal is so dismissed, ""the appellant may apply to the appellate Court for the re-

admission of the appeal; and where it is proved that he was prevented by a sufficient cause from appearing when the appeal was called on for

hearing, the Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit."" These rules provide a remedy in a case like the

present for having the appeal re-admitted. But by Article 168 of the Limitation Act, IX of 1908, an application for the re-admission of an appeal

dismissed for want of prosecution must be brought within 30 days from the date of the dismissal. It, therefore, follows that, if the Court is confined

to acting under Order 41, Rule 19, this application is '' statute barred.

It is, however, contended that the Court has an inherent power u/s 151, C.P.C., or otherwise, to reinstate an appeal under such circumstances.

There are two authorities quoted in support of that proposition - Debi Baksh Singh v. Habib Shah ILR (1913) All. 331 and Sonu Bai v. Shiwaji

Rao ILR (1920) B. 648. In the former the Privy Council acted u/s 151, C.P.C., in a case where a suit was dismissed for non-appearance, the

plaintiff being dead and the Court being unaware of that fact, and their lordships say, ""The principle of forefeiture of rights in consequence of a

default in procedure by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead or the ranking of

death under the category of default does not seem to be very stateable."" Their Lordships in effect, held that the Court had made a mistake in

thinking that the plaintiff was alive, that the plaintiff or appellant could not be said to have not appeared or to have defaulted in appearing when he

was no longer alive, that, therefore, that was a case to which the rules did not apply and that the Court, to do justice, could fall back on its inherent

powers.

In Sonu Bai v. Shivaji Rao I.L.R.(1920) B. 648 the facts were that a pleader employed to conduct an appeal died and his death was

communicated to the guardian ad litem of a minor and such guardian at the time being insane took no steps and the appeal was dismissed for want

of appearance. The Court held that it had an inherent power u/s 151, C.P.C. to reinstate the appeal thinking that the death of the pleader

unknown, in fact, to the appellant was equivalent to the death of the plaintiff himself. If this case is rightly decided, we think that the assumed facts

before us are as strong, for the non-appearance of the Vakil due to his political attitude could not reasonably be imputed to his client. But the

question as to when this Court can act u/s 151 or otherwise under its inherent powers is a matter which has been fully considered in Neelaveni v.

Narayana Reddi ILR M. 94 , and it can be stated thus: Where a Code declares the law on any matter specifically dealt with, the law must be

ascertained by an interpretation of the language used by the legislature, for the essence of a Code is to be exhaustive on such matters. In that case,

the Court held that Order 9, Rules 8 and 13 were exhaustive in respect of cases where the plaintiff made default in appearance in a suit and I think

that we are bound to say that Order 41, Rules 17 and 19 are equally exhaustive. The Privy Council case referred to above can be distinguished on

the ground that there has been in fact, no failure to appear because failure to appear cannot include the case of a man who is dead; whereas in this

case there has been a failure to appear by the Vakil and, if it is held that in such a case as this, the Court can act under its inherent powers, it would

involve a finding that in every case of dismissal of an appeal or a suit by reason of the non-appearance of the Vakil, the Court has inherent powers

which it must exercise almost ex debtta justitia in favour of setting aside the order dismissing the suit or appeal. In our judgment Sonu Bai v. Shivaji

Rao ILR (1921) B. 648 was wrongly decided. To hold otherwise in this case would be merely an evasion of the definite words of Article 168 of

the Limitation Act.

We regret that we have come to this conclusion because, in our view, it is not right that a party''s suit or appeal should be irrevocably dismissed

by non-appearance through no fault of his own, and again through no fault of his own, by his not becoming aware of the dismissal for the short

period of 30 days. The remedy for such injustice is not in our hands. Section 5 of the limitation Act might have been made applicable by an

enactment or rule to applications under Rules 17 and 19, and, in cur judgment, it is very desirable that this should be done. It will, however, not

help the present appellant. We regret that this appeal must be dismissed. In view of the fact that the respondent did not bring the full facts before

the Original Court at an early stage and has brought before us facts which we do not accept, we think that the right order as to costs will be that

there will be no costs here or below.