JUDGMENT
1. This appeal and the connected appeals Nos. 207 to 209 are against four orders by which the learned District Judge of Shahjahanpur refused to restore four different appeals then pending before him, all of which he had dismissed on an earlier date, for default of the appearance of the appellant.
2. An affidavit was filed before the learned District Judge by the general agent of the appellant, one Munawar Beg and it was to this effect. Munawar Beg attended the Court and was looking after the appeals. He had gone out to attend a call of nature and during his temporary absence the cases were called out and were dismissed for default. There is nothing to rebut this evidence before the learned Judge. The learned Judge says in his order that he waited between 10 to 15 minutes and nobody turned up. He also noted the fact that the applications for restoration were made a few days later and not on the very day the appeals were dismissed.
3. We have looked into the order sheet and we have looked at the original order dismissing the appeals. There is nothing to suggest that the two pleaders who had been engaged in the appeals were ever sent for. As a matter of practice, when there are pleaders in a ease, they are always sent for by the Court and this is a salutary practice. No doubt the peon calls out at the door of the Court and that proves very often sufficient; but when there are pleaders, the ordinary practice of sending for them should not be discontinued. This practice is followed even in the High Court. In appeals especially, it is not absolutely necessary that parties should be present in person when there are constituted agents in the shape of counsel, in Court. Counsel would be busy in several Courts and it is conducive to good work that they should be sent for. In the circumstances, we are of opinion that the appeals should have been restored by the learned District Judge.
4. We allow the appeals, set aside the orders of the learned Judge and we direct the Court below to restore the appeal and to decide it according to law. The appellant, who was in default, will pay the costs incurred by the respondent in this Court, which we assess at Rs. 6-4-0 in each of these cases. We direct that the appeal in the Court below will be restored on condition of the appellant paying to the respondent or his counsel the sum of Rs. 6-4-0 in each case. The payment must be made within one month of the receipt of the record in the Court below.
