- (1.) THIS is a plaintiff's appeal arising out of an order dismissing his application under O.41, R.19 Civil P.C. for restoration of the appeal dismissed in default.
(2.) THE judgement under appeal makes amazing reading and the facts of the case are also extraordinary. First Appeal No. 497 of 1957 was initially filed by the appellant in the High Court on 19-12-1957 against the judgement and decree dated 20-9-1957 of the IInd Additional Civil Judge, Meerut in Original Suit No. 22 of 1953. Later the Appeal was transferred to the Court of the Ist Additional District Judge, Allahabad and was received in that Court on 11-12-1967 and 9-1-1968 was fixed for hearing. THE notice of this date was sent to the appellant by registered cover which is alleged to have been received back with an endorsement dated 21-12-1967 of the postman to the effect that the addressee had refused to accept the notice. THE appellant was represented in the High Court by two eminent counsel namely, Sarvasri Kanhaiya Lal Misra and A.P. Pandey, who are no more. It is stated that the notice of the aforesaid date fixed for hearing of the appeal was sent to these counsel as well. THE notice with regard to Sri Kanhaiya Lal Misra was received by his clerk Sri Brij Kishore and the notice sent to Sri A.P. Pandey bore an endorsement made by him to the effect that he had no instructions from his client and therefore the appellant should be informed directly by the Court. On 9-1-1968 when the appeal was taken up for hearing the aforesaid notice was taken to be sufficient notice to the appellant of the date of hearing and the appeal was dismissed in default. In these fluctuating vicissitudes it is little wonder that the appellant could not keep pace with the progress of the appeal and remained ignorant of the date fixed for its hearing. It is noteworthy that so long as the appeal remained pending in the High Court the appellant prosecuted the same energetically. He got the records inspected, made an application for translation and printing and deposited the Editor's fee in time and on preparation of the estimate the requisite amount was also remitted by him by telegraphic Money Order and it was thus deposited in time. Thereafter the appellant remained completely ignorant of further proceedings in the appeal and he was throughout under the bona fide impression that it was pending in the High Court and that eventually when it became ripe for hearing he would receive information from his counsel. In the meantime, however, it so transpired that without any information to the appellant and without occasion to cause any misgiving to him in this regard the appeal ceased to be pending in the High Court and was received in the transferee Court. On 6-5-1970 the appellant met his counsel in the High Court and was told by them that according to the new Rules hie appeal was likely to be transferred to Meerut. Judicial notice can be taken of this fact that at one stage the appeals of certain valuation were required to be transferred from the High Court to the District Courts and it was seriously believed for some time that probably the appeals would be transferred for hearing to the Courts situate in the respective Districts. Later, however, the hearing of all such appeals was entrusted to an Additional District Judge sitting at Allahabad and in that process the instant appeal was also transferred to the file of the Ist Additional District Judge, Allahabad in whose Court the appeal was dismissed in default. An application supported by an elaborate affidavit was filed by the appellant in May 1970 before the transferee Court along with an application under S.5, limitation Act praying for condonation of the delay in presenting the application and for restoring the appeal to its original number and disposing it of on merits. This application was rejected by the IIIrd Additional District Judge and it is this order which has been impugned by the appellant in this appeal.
(3.) IT is remarkable that on 9-1-1968 when the appeal was posted for hearing the defendant himself had applied for adjournment but that application appears to have been consigned to record with the mere order "file" and when the appellant's application for re-admission of the appeal came up for hearing no reference was made to the respondents' application. The manner in which the learned Judge conducted the proceedings and disposed of the restoration application unfortunately betrayed a lack of balance and impartial approach to the matter in controversy. The order eventually passed by him amounted to prejudging the case and showed that it was disposed of with an apparently biased attitude. The learned Judge appears to have been greatly impressed by the report of the postman that the appellant had declined to accept the notice of the appeal. There was, however, nothing to show that the report was in any manner better than the usual such reports as are on deeper analysis often found untrue and on the basis of which the rule of prudence makes the Courts generally reluctant to pass any drastic orders against a party. The appellant in his affidavit filed in support of the restoration application had unequivocally asserted that he had no knowledge of the date fixed for hearing of the appeal and that he did not receive any notice from the transferee Court in regard to the date fixed in the appeal. It was emphatically averred in the aforesaid affidavit that the postal endorsement on the notice sent by registered cover to the appellant was false and fraudulent and he had reason to believe that the endorsement had been procured in order to make out a case of default. The affidavit further added that the deponent had been himself a Railway Magistrate, First Class, Delhi and nothing could have been farther from his intention than to refuse notice of the appeal whose result was of tremendous consequences to himself. It was also stated in the same affidavit that the deponent has been out of station during the last ten or eleven days in Dec. 1957 and no postman with a registered notice ever met him and to say that he refused to accept the notice was wholly untrue. Notwithstanding such categorical averments in the affidavit which were also largely supported by the probabilities of the case, the learned Judge chose to dismiss the restoration application and did so, I am constrained to observe with a profound disregard of the equities and relevant provisions of law. When a report of the nature endorsed by the postman in the instant case was made, it was the duty of the Court when full facts were placed before it with an affidavit by the person adversely affected by the impugned order, to go more deeply into the facts of the case and not to accept implicitly the report of the postman as gospel truth without even calling upon the respondent to examine such postman. This salutary principle, born of pragmatic experience, has been approved by the Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana, AIR 1976 SC 869. In that case the question arose as to whether the notice sent by the respondent could be held not to have been served at all simply because the postman who had made the endorsement had not been produced. The Andhra Pradesh High Court, relying on the case Meghji Kanji Patel v. Kundanmal Chamanlal, AIR 1968 Bom 387, held that the notice was not served. There also a writ of summons said to be sent by registered post had been returned with the endorsement "refused". The appellant's presumption had been repelled by the defendant's statement on oath that he had not refused it, as it was never brought to him. In this state of evidence it was held that unless the postman was produced, the statement of the defendant on oath must prevail. The ex parte decree passed on the basis of such alleged service was, therefore, set aside. Their Lordships of the Supreme Court held that on the facts found the view expressed by the High Court was correct. I have already referred in detail to the identical situation which arose in the present case and the learned Judge completely misdirected himself by according without demur the endorsement of the postman which, for aught we know, might have been as the appellant stated, "procured". In the circumstances the order rejecting the application for readmission of the appeal appears to have been passed in haste and without proper application of mind to the important issues which were at stake.;