Mangar Singh vs Babu Bharat Prasad

Das, J.—This appeal comes before me from the judgment of the Subordinate Judge of Muzaffarpur and arises out of a suit brought by the respondents for recovery, of possession of the land, which is the subject matter of the suit, on the allegation that the defendants Nos. 3 to 5 had no right to transfer the said land by executing a mukarrari patta in favour of defendant No. 1. It appears that on the date when the appeal came on for bearing before the learned Subordinate Judge, the appellant was personally present in Court but his Vakil stated that he had no instructions to argue the appeal. I think the Subordinate Judge would have been right under those circumstances to dismiss the appeal under Order XLI, rule 17, of the Code, leaving it open to the appellant to apply for re-admission of the appeal under Order XLI, rule Order XLI, rule 19; but the Subordinate Judge did not take this course. He asked the Vakil for the respondent to deal with the main facts and features of the case and the learned Vakil having dealt with the case from his own point of view, the Subordinate Judge held that the appeal was without substance and dismissed it with costs. It has been held by this Court in the case of Mubarak Hussain v. Syed Shah Hamid Hussain 38 Ind. Cas. 509 : 2 P.L.J. 8 : 1 P.L.W. 188 : (1917) Pat. 308, that a mere general statement that on a perusal of all the evidence in the case the Court is satisfied as to a certain set of facts is not a sufficient judgment within the meaning of the law.

In the present case the learned Subordinate Judge has bestowed only one line to the whole case, and I am unable to hold that this is a judgment in accordance with law. But it is argued by the learned Vakil for the respondent that in substance the dismissal is under Order XLI, rule 17, and that he need not have expressed any opinion on the merits of the case at all. I do not agree with this contention, because the form of the judgment made it impossible for the appellant to apply before the Subordinate Judge for re-admission of the appeal under Order XLI, rule 19. If he had dismissed the appeal under Order XLI, rule 17, it would have been possible for the appellant to come to the Court and ask the Court to re-admit the appeal under Order XLI, rule 19. But the course adopted by the learned Subordinate Judge did not leave any option to the appellant. He had to come to this Court in order to show that the judgment of the learned Subordinate Judge is not in accordance with law. The case must, therefore, be remanded to the lower Appellate Court for disposal according to law. I think the appellant is entitled to the costs of this appeal. Costs of the Courts below will abide the result.