Hare Krishna Mahanti v. Bhusan Chandra Mahanti — 1908 DIGILAW 17 (CAL)

JUDGMENT Stephen, J. - The Plaintiff-Respondent in this case, a zemindar sued the Defendant, his agent for an account of money received by him under sec. 24 of Act X of 1859. The suit was properly brought in the Court of the Deputy Collector of Cuttack, and was dismissed. The Plaintiff then appealed to the District Judge of Cuttack under sec. 160 of Act X of 1859 when the appeal was heard ex parte and decreed on 12th March 1906. On this the Defendant applied for a re-hearing under sec. 560, Civil Procedure Code, or for a review of judgment under sec 623. This application was refused by an order of the 16th September against which the present appeal is brought. On the facts two preliminary objections have been made before us. The first is that the District Judge had no power to entertain the application in which the present order was made : the second, that we have no power to hear this appeal. Though the points are different they rest on the same ground, namely chat Act X of 1859 is a complete Code in itself, and that sec. 558, under which the District Judge purported to act and sec 588, Civil Procedure Code, under which we are invited to act have no application to the case. This contention is supported by the decisions in Nogendra Nath Mullick v. Mathura Mohan Pasi ILR 18 Cal. 368 (1891) and Radha Madhub Santra v. Lukhi Narain Roy Chowdhry ILR 21 Cal. 428 (1893), in the latter of which cases it is laid down that Act X of 1859 is." a complete Code in itself" which words, it is suggested, must be taken to mean that no section of the Code can be taken as applicable to a case arising under the Act. I doubt whether, in view of the Privy Council decision in Nilmoni Singh Deo v. Tara Nath Mookerjee L.R. 9 I.A. 174: s.c. ILR 9 cal. 295 (1882), it would be right to attach this meaning to the words. But it is not necessary to decide this question because, as far as the present case is concerned, the Respondent's contention is answered by a study of the contents of the Act itself. 295 (1882), it would be right to attach this meaning to the words. But it is not necessary to decide this question because, as far as the present case is concerned, the Respondent's contention is answered by a study of the contents of the Act itself. It is not disputed that in this case there was an appeal from the Deputy Collector to the District Judge who now represents the Zillah Judge, under sec. 160 of the Act. The procedure to be followed before the Judge is provided in sec. 161, which runs as follows:-- 2. "the rules in force in regard to the manner in which such appeals are heard and determined, and to all proceedings which may be had in respect of such appeals, shall be applicable to appeals to the Zillah Judge or Sudder Court under this Act." Here the "rules in force" must mean the rules ordinarily in force in the District Judge's Court, that is, the contents of the Civil procedure Code; of this sec. 556 contains rules as to the manner in which an appeal will be heard, and if an Appellant attends and a Respondent does not, an appeal will be heard ex parte. Secs. 560 and 588 (27) mention proceedings which may be had in respect of such appeal. Consequently the Respondent against whom an ex parte decree has been made under sec. 556 may apply to have his case re-heard, and If he fails, may appeal to this Court, This view is amply supported by the judgments in Sadai Naik v. Serai Naik 5 C.W.N. 279 : s.c. ILR 28 Cal. 532 (1901) following as it does the Full Bench decision in the Sudder Dewani Adalat Court in Hallodhar Biswas v. Mohesh Chunder Haldar S.D.A. Decisions for 1861, p. 144 and Nilmoni Singh Deo v. Tara Nath Mookerjee L.R. 9 I.A. 174 : s.c.I.L.R. 9 cal 295 (1882). The result is that the decision appealed from was made on an application that the Judge had power to entertain, and that we have jurisdiction to hear this appeal. 3. As to the merits of the case there is not much to be said. It is not disputed, when the case came up for hearing on the 8th March 1906, the present Appellant had two pleaders, a leader and a junior. 3. As to the merits of the case there is not much to be said. It is not disputed, when the case came up for hearing on the 8th March 1906, the present Appellant had two pleaders, a leader and a junior. The leader was absent through illness, but had arranged that another pleader should do his work. This pleader was prepared to appear in the case but had no vakalutnama. The junior pleader engaged was not prepared to conduct the case relying on the presence of his leader. The result was that the Judge refused to hear the senior pleader who had no vakalutnama, and apparently refused to grant a postponement to the junior pleader who was not ready. I think he was wrong not to hear the pleader who was willing to conduct the case. There appears to have been no reason to doubt the good faith of the request for the substitution of the pleader who was present for the one who was absent, and the absence of a vakalutnama was not to my mind a reason for proceeding ex parte. Under the circumstances I think that he might well have granted an adjournment for the purpose of enabling the junior pleader to prepare himself to conduct the case, subject of course to any order he saw fit to make as to costs. The learned Judge bases his refusal to grant an adjournment on the fact that the case had been twice adjourned on the representation of the present Appellant's pleader. This is so; but it had otherwise been adjourned 13 times in 11 months. The adjournments were no doubt unavoidable but must have been none the less a cause of loss to the Appellant, and should have inclined him to a favourable reception of his application. As it was I consider that the Judge ought not to have shut out the Appellant from being heard when all reasonable steps for his being heard had been taken, and the appeal must be allowed with costs here and in the Court below, and the original appeal must be re-heard. 4. The rule is discharged. Mookerjee, J. 5. The circumstances, which have given rise to the proceedings now before this Court, are not the subject of controversy. The Respondents commenced an action under sec. 4. The rule is discharged. Mookerjee, J. 5. The circumstances, which have given rise to the proceedings now before this Court, are not the subject of controversy. The Respondents commenced an action under sec. 24 of Act X of 1859, against the Appellant, in the Court of the Deputy Collector of Cuttack, for an account of sums collected by him as their agent. The claim was valued at above Rs. 100 and was dismissed by the Court of first instance. The Plaintiffs preferred an appeal to the District Judge of Cuttack under sec. 160 of Act X of 1859. The appeal was heard ex parte and decreed on the 12th March 1906. On the 6th April following, the Appellant made an application to the District Judge to set aside the ex parte judgment and to re-hear the appeal. This application was dismissed on the 10th September 1906 on the ground that there had been laches on the part of the Appellant and that the evidence did not establish that he was prevented by sufficient cause from appearing when the appeal was called on for hearing. The present appeal has been filed against this order of the District Judge. 6. A preliminary objection is taken to the hearing of the appeal on the ground that the order in question is not appealable and it is further suggested that the District Judge had no jurisdiction to entertain the application for revival. It is argued that Act X of 1859 is a Code complete in itself and that the Appellant is not entitled to the benefit of the provisions of sec. 560 of the Code of Civil Procedure. In support of this position, reliance is placed upon the cases of Doyal Chandra v. Dwarka Nath Marshall 148 (1862), Nogendra Nath v. Mathura Mohan I.R. 18 Cal. 368 (1891), Radha Madhub v. Lukhi Narain ILR 21 Cal. 428 (1893) and Mokunda Bullav Kar v. Bhagaban Chunder ILR 21 Cal. 514 (1894). 560 of the Code of Civil Procedure. In support of this position, reliance is placed upon the cases of Doyal Chandra v. Dwarka Nath Marshall 148 (1862), Nogendra Nath v. Mathura Mohan I.R. 18 Cal. 368 (1891), Radha Madhub v. Lukhi Narain ILR 21 Cal. 428 (1893) and Mokunda Bullav Kar v. Bhagaban Chunder ILR 21 Cal. 514 (1894). In answer to this argument, it is contended on behalf of the Appellant that if these cases lay down broadly and without any qualification the principle that Act X of 1859 is a Code complete in itself in the sense that no provisions of the CPC are applicable to proceedings under that Act, they are inconsistent with the decision of their Lordships of the Judicial Committee in Nilmoni Singh v. Tara Nath L.R. 9 I.A. 174: s.c.I.L.R.9 Cal. 295 (1882); and it is further contended that in any view of the matter, sec 560 is applicable by reason of the provisions of sec. 161 of Act X of 1859. In my opinion, the second branch of the contention of the Appellant is manifestly well-founded and must prevail. As already stated, the appeal in the present instance lay from the Deputy Collector to the District Judge under sec. 160 of Act X of 1859. Sec 161 provides rules regarding presentation and hearing of such an appeal and is to the following effect:-- 7. "The petition of appeal shall be written on the stamp paper prescribed for appeals from the Subordinate Civil Courts with reference to the amount of value of the property involved in the appeal; and the rules in force in regard to the time within which appeals from the decisions of such Courts may be received, and to the manner in which such appeals are heard and determined, and to all proceedings which may be had in respect of such appeals, shall be applicable to appeals to the Zillah Judge or High Court under this Act. It is obvious, therefore, that if the appeal preferred to the District Judge, is to be heard and determined in the manner in which appeals from the Subordinate Civil Courts are heard and determined, sec 556 of the CPC is applicable, and under the second paragraph of that section, if the Appellant attends and the Respondent does not attend, the appeal shall be heard ex parte in his absence. It is further plain that if all proceedings which may be had in respect of appeals from the Subordinate Civil Courts may also be had in respect of an appeal preferred from a decision of the Deputy Collector to the District Judge, sec 560 of the CPC is applicable; and if that section is applicable, the order made by the District Judge, if it is one of refusal to rehear the appeal, is itself appealable to this Court under sec. 588, cl. 27 of the Code of Civil Procedure. The view I take of the scope and effect of sec 161 of Act X of 1859 is amply borne out by the decision of a Full Bench of the Sudder Court in Hallodhar Biswas v. Mohesh Chunder Haldar S.D.A. Decisions for 1861, p. 144 and by the decision of this Court in Sadai Naik v. Serai Naik 5 C.W.N. 279: s.c.I.L.R. 28 cal. 532 (1901). As pointed out in the earlier case, the language of sec. 161 shows that the Legislature intended that appeals under sec 160 should be treated in every respect as regular appeals in the Zillah or Sudder Courts, as the case may be, and that Act X of 1859 having given the right of appeal to these Courts, intended to leave the Courts to deal with the appeals according to their own forms and mode of procedure and to place no sort of restriction upon the action of the laws by which the decisions of these Courts are ordinarily governed. If this view of the scope of sec. 161 is well-founded, as I think it plainly is, there can be no possible controversy as to the applicability of secs. 556 and 560 of the Code of Civil Procedure. In this view of the matter, it is unnecessary to deal at length with the first branch of the contention of the Appellant which raises the question, whether the proposition that Act X of 1859 is a complete Code in the sense that no provision of the CPC is applicable to proceedings thereunder, may not require to be qualified in view of the decision of the Judicial Committee in Nilmoni Singh v. Tara Nath L.R.9 I.A. 174 : s.c.I.L.R. 9 Cal. 295 (1882). 8. As regards the merits of the present appeal, there can, I think, be no reasonable doubt that the Appellant is entitled to succeed. 295 (1882). 8. As regards the merits of the present appeal, there can, I think, be no reasonable doubt that the Appellant is entitled to succeed. It appears that the appeal was preferred on the 29th April 1905 and was not heard till the 8th March 1906. Various dates for hearing were fixed from time to time and there appear to have been sixteen intermediate adjournments, twelve of which were made to suit the convenience of the Court, two for the convenience of the Appellant and two for the benefit of the Respondents. It appears that the present Appellant who was the Respondent in the appeal before the Judge, originally entered appearance through a pleader Babu G.C. Roy. Later on, he engaged a senior pleader, Babu Gokulanundo Chowdhury, to argue the case. When the appeal was called on for hearing, It was represented to the Court that Babu Gokulanundo could not attend on account of illness and that he had transferred his brief to another pleader, Babu Pitbas Patnaik, who appeared and offered to argue the case on behalf of the Respondent. The Judge declined to hear him as his name did not appear on the vakalutnama. The pleader through whom the Respondent had originally entered appearance stated that he had no instructions to argue the appeal, but if the case was adjourned for a day he would be ready. The Judge declined to adjourn the case and the result was that the appeal was heard ex parte and the judgment of the Court of first instance was reversed. In my opinion, the course which was adopted by the Court was not in the interests of justice and that either the pleader who offered to argue the case should have been beard or an adjournment ought to have been granted to enable the Respondent to be properly represented. Under the circumstances stated, the Appellant would have been amply protected if the learned Judge had made a suitable order for costs in his favour. In my opinion, it is not at all desirable that cases should be disposed of in this manner without hearing one of the parties when it is manifest that he and his legal advisers had bona fide made every effort to be represented before the Court. In my opinion, it is not at all desirable that cases should be disposed of in this manner without hearing one of the parties when it is manifest that he and his legal advisers had bona fide made every effort to be represented before the Court. The appeal, therefore, must be allowed and the order of the Court below discharged; the ex parte decree made on the 12th March 1906 is set aside and the appeal before the District Judge will be re-heard after reasonable opportunity has been given to the present Appellant to be represented at the hearing. The Appellant is entitled to his costs In this Court as well as in the Court below.