1. This is an application for revision of an order, dated 24th February 1938, made by the learned Civil Judge of Agra, that the appeal be dismissed as the appellant did not appear on that day which was the day fixed for the hearing of the appeal. It is not denied that the appellant was absent and that his counsel had no instructions. Instead of making an application to the lower Appellate Court under Order 41, Rule 19, the applicant has thought it fit to file this revision. In our opinion the revision cannot be entertained. The learned Civil Judge in our opinion had jurisdiction to make the order complained of and he has not acted in the exercise of that jurisdiction illegally or with material irregularity. It is not suggested that the learned Judge failed to exercise a jurisdiction vested in him by law. It is, however, urged that in view of the observations made by a learned single Judge of this Court in Mohammadi Husain v. Mt. Chandro,(1937)24 AIR All 284, it was the duty of the learned Civil Judge to proceed in the manner laid down in Order 41, Rr. 30 and 31. In the first place, the case before us differs from the case cited in one important particular, namely, that in the case before us there was no appearance at all, whereas in the case cited there was an appearance and an application' was made for adjournment. Apart from that, however, we have, in Mathura Das v. Narain Das Govind Das, Reported in (1940) 27 AIR All 248, differed from the view taken by the learned Judge who decided the case in Mohammadi Husain v. Mt. Chandro,(1937)24 AIR All 284. Where on the day fixed for the hearing of an appeal, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, the Court is entitled to make an order that the appeal be dismissed. This is clearly laid down in Order 41, R.17.
2. We cannot therefore accept the contention of the learned Counsel appearing for the applicant that it was the duty of the learned Civil Judge to proceed in the manner laid down in Order 41, Rr. 30 and 31. As we have pointed out in Mathura Das v. Narain Das Govind Das, Reported in (1940) 27 AIR All 248, mentioned above, the Court has to proceed under Rr. 30 and 31 of Order 41 "after hearing the parties or their pleaders. To say that even when the appellant does not appear it is the duty of the Court to go through the record to find out the points for determination and to read the evidence for itself and to write a judgment in accordance with Order 41, Rule 31 is to require the Court to do something which the law does not require it to do. There are no merits in this revision and we dismiss it with costs.