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Judgment
Walter Salis Schwabe, K.C., C.J.—I have expressed myself on this subject in fairly strong language before and I propose to do so again.
When for some reason a man has not attended a case in Court and there is no sufficient explanation of his absence, the case, by reason of his
absence, is allowed to go exparte. If he comes to Court afterwards and asks that his case may be restored to file, the question to be considered by
the Court is not whether by some human possibility, being wise after the event, he could not have got there in time or whether a man who studied
his railway guide a little better, would not have got in another train or taken another route, but whether the man honestly intended to be in Court
and did his best, though in his own stupid way, to get there in time and once the Court is satisfied as was the fact in this case that the man did try to
get there and that he would have got there in time but for the intervention of an inevitable accident for which he was in no way responsible, it is the
duty of the Court, in my judgment, to set aside the judgment, mulcting, in proper cases, the delinquent man in costs. In all those cases, this universal
panacea for healing wounds, as it has been called in England will properly be applied. It is not right in cases of this kind that the man should have
his case disposed of without being heard. These Courts are here so that people who have cases can have those cases. heard and determined, and
it should never be the intention of the Court that a man should be deprived of a hearing unless there has been something equivalent to misconduct
or gross negligence on his part or something which cannot be put right, as far as the other side is concerned, by making the man to blame pay for it.
The proper order in this case should have been that the case should be restored to the list and the judgment set aside on payment of all costs
thrown away by the defendant, and that is the order that I propose to make. The costs of this appeal will be paid by thevrespondent. The costs of
the application to set aside the judgment before Phillips, J. will be the costs in the cause.
Wallace, J.
I agree. Whether there was negligence precedent or not does not affect the case. Under ordinary conditions if the appellant had started from
Trichinopoly by the evening train on the 12th he would have been in time for the hearing of this case on the 13th, and the breach on the railway line
is obviously a sufficient cause for his not appearing, and that is the question which the Court had to decide. I am quite clear that there is sufficient
cause for his not appearing and I therefore agree with the judgment of the learned Chief Justice.