Sukha Singh vs Brich Upadhya

This is an appeal against an order of the Additional Subordinate Judge of Patna, refusing to restore to the pending file an appeal which had been dismissed for default. It appears that the date fixed for the hearing of the appeal was January 26th, 1916. On that day the District Judge made an order making over the appeal to the Additional Subordinate Judge for disposal. There is nothing to show that the case was called on and the parties told that the case would be made over to another Court. This should always be done and the order-sheet should show that it has been done. According to the evidence of the clerk of the Barrister instructed to appear in the appeal, the clerk and the appellant''s father remained outside the District Judge''s Court all day only to discover in the evening that the appeal had been dismissed for default by the Additional Subordinate Judge. Under the circumstances we think that the application for re-admission should have been allowed. We allow this appeal, set aside the order of the Additional Subordinate Judge rejecting the application for re-admission of the appeal and direct that the appeal be restored to the pending file and disposed of according to law. Costs of the application in the Court below and in this Court must be paid by the applicant. Hearing fee in this Court one gold mohur.