P L D 1961 Dacca 243 (PLP)

This application under section 115 of the Code of Civil Procedure is directed against an order of the learned District Judge, Khulna, rejecting a petition under Order XLI rule 19 of the Code of Civil Procedure for the restoration of an appeal which had been dismissed for non‑filing of requisites after the admission of the appeal.

2. The case arose out of a proceeding under section 26‑F of the Bengal Tenancy Act filed by the opposite party herein. In the said case it appears that after both parties had taken diligent steps for procuring their witnesses on the date fixed for peremptory hearing the present petitioner, on the date of the peremptory hearing, filed an application for adjournment on the ground that her husband was ill. This application was duly supported by a medical certificate. But the learned Munsif did not accept that as a sufficient ground and ordered the parties to get ready immediately. The opposite party was unable to contest the said matter and the learned Munsif examined witnesses on behalf of the applicant for pre‑emption and admitted one docu ment which was marked Exh.

1. But, curiously enough, without discussing the case or delivering a judgment merely passed the following order that " the Miscellaneous case be allowed ex parte ". No further reasons for this final order were given.

3. As against this order, the present petitioner preferred an appeal in which various grounds were taken including grounds contending that the learned Munsif had erred in overlooking the fact that the application for pre‑emption was itself, on the face of it, barred by limitation. The grounds of appeal in the Court below also challenged the propriety of the action of the learned Munsif in disposing of the matter merely by an order in the form that he did.

4. This appeal was admitted on the 10th December, 1958, but the learned District Judge directed that requisites must be put in by the next day, i.e., the 11th of December, 1958, and since the requisites were not put in by tire 11th of December, 1958, the memorandum of appeal was rejected. Thereafter on the 7th of January, 1959, the present petitioner filed an application under Order XLI rule 19 of the Code of Civil Procedure for restoring the appeal. The only ground shown in this application was that as the time for filing the requisites had been fixed on the next day, the information thereof could not be conveyed to the present petitioner by her agent who attended the Court on the 10th of December, 1958. This application for restoration was itself rejected on the 26th of January, 1959, and tile petitioner has now come up in revision to this Court against the said order.

5. The learned Advocate appearing to oppose this applica tion has taken a preliminary objection that an order refusing restoration under Order XLI rule 19 is an appealable order, and no revision lies. This objection is no doubt sound. But the learned Advocate for the petitioner requests me in the special circumstances of this case to treat this application as a memorandum of appeal and to deal with it as an appeal. The Court‑fees actually paid are in excess of the Court‑fees that would have been required to be paid in the case of an appeal. There is abundant authority for the proposition that in the ends of justice f this Court has the power to treat a memorandum of appeal as an application for revision and vice versa an application of revision as an appeal in suitable cases. The present, in my view, is a case in which I feel that this indulgence should be given to the petitioner and the application in revision, though not maintainable, should be treated as a memorandum of appeal.

6. Having done so, I feel that this appeal should succeed, for it is apparent from the order‑sheet of the Court of appeal below that the time fixed for putting in the requisites was unreasonable in the case of an appellant coming from a distance. Allowing only 24 hours or even less than that for putting in the requisites necessary to my mind, amounts to placing an unreasonable restriction and almost from the very beginning making it well nigh impossible to comply with the direction of the Court.

7. It may, however, be said that the learned pleaders appear ing in the Court of appeal below should have immediately pointed out to the Court that their client would not be able to comply with the said order to put in the requisites within such a short time. Since this was not done, some amount of blame must also be shared by the parties. Again, it has been rightly pointed out on behalf of the opposite parties that there is nothing on the recot1 to show that the agent or tadbirkar of the present petitioner did not get back in time to inform tae present petitioner of the Court's order for putting in tae requisites by 11th December of 1958. Notwithstanding these points, I am of the opinion that the Court of appeal below by its own unreasonable order, fixing such a short time for putting in the requisites, made it almost. impossible for the party to comply with the said order and in those circumstances it would have been a proper exercise of discretion on its part to give at least one more extension of time for compliance with the said order, I would have expected the Court on the 11th of December 1958, finding that the requisites had not been put in, to give a little further time for putting to the requisites and if on the second opportunity being given, the requisites were still not put in, the Court would have been legitimately entitled to dismiss the appeal for non‑prosecution.

8. For these reasons, I allow the appeal, set aside the order of the learned District Judge, remand the case back to him and direct that the appeal be restored to the file of the District Judge and be heard and disposed of in accordance with law. Since, however, there has been some amount of carelessness on the part of the learned pleader of the present petitioner in the Court below in not pointing out to the Court immediately that the order for putting in the requisites on the very next day, was incapable of compliance, I direct that the present petitioner should pay the costs of the opposite parties herein both in this Court as also in the Court of appeal below. The payment of these costs will be a condition precedent to the restoration of the appeal and must be put in the Court below within three weeks of the receipt of the record there. In default of the costs being put in within the time above‑mentioned, this appeal will stand dismissed with costs. K.B.A. Appeal accepted.