Ram Labhaya, J.:— This petition of revision is directed against the order of Mr. D.N Hazarika Spl. Subordinate Judge, A.V.D, dated 13th March 1948, by which plaintiffs' application for restoration of their euit, which had been dismissed in default, was allowed and the suit restored. The petition was presented to Sir R.F Lodge, the then Chief Justice of this Court on 1st June 1948. He was the only Judge of the Court at that time. No other Judge had been appointed till then. He heard the advocate for the petitioner and directed that a rule should issue calling upon the Court concerned to show cause why the order complained of in the petition be not set aside. Usual notices on the opposite parties were also ordered to issue. Further proceedings in the suit were stayed. The opposite parties have been served, the records have been received and the petition is now before us for hearing and disposal.

2. The learned counsel for the opposite parties (plaintiffs) has raised two preliminary objections, both of a somewhat unusual character. The first objection is that on 1st June when the petition of revision was presented and received, this High Court was not properly Page: 7constituted and the Chief Justice, therefore, had no jurisdiction either to receive the petition or to issue a rule on it. The objection is based on the language of S. 3, Assam High Court Order, 1948. This section provides that:

“As from 5th April 1948, (hereinafter referred to as ‘the prescribed day’), there shall be a High Court for the Province of Assam which shall be a Court of record, and shall consist of a Chief Justice and such other Judges as the Governor General may from time to time, whether before or after the prescribed day, appoint in accordance with the provisions of S. 220 of the Act.”

3. It is urged that the High Court, according to this section, must consist of a Chief Justice and such other Judges as the Govern or General may from time to time appoint. The Chief Justice alone could not constitute the High Court. The appointment of some other Judges was essential. The direction, it is argued, is mandatory and the High Court could not come into existence till in conformity with the direction the Governor-General had appointed other Judges necessary to constitute the High Court. Our attention has already been drawn to the provisions contained in Section 220 of the Government of India Act, which also provides that every High Court shall be a Court of record and shall consist of a Chief Justice and such other Judges as the Governor General may from time to time deem it necessary to appoint. The learned counsel has relied on the language of the provisions of the two sections referred to above and has not produced any authority in support of the proposition he has put forward. We have carefully considered the argument addressed to us on this point and we think the objection is not sound. There was to be a High Court for this Province from 5th April 1948, the prescribed day. The Calcutta High Court, which formerly was exercising jurisdiction 90 far as this province was concerned was to cease to have that jurisdiction. The appointment of the Chief Justice was made before the prescribed day, but under the proviso to S. 3 it took effect from the prescribed day. The appointment of such other Judges as the Governor-General deemed necessary within the maximum limit was no doubt necessary. But both Section 3 of the Assam High Court Order, 1948 and Section 220 of the Government of India Act, 1935 allow the Governor-General to make other appointments, from time to time. No time limit is placed on the exercise of jurisdiction vested in him in this respect. It cannot be said, therefore, that the Governor-General was under an obligation to appoint Judges at once or at a time that they could function on the prescribed day or on any particular day. He is really the judge of the time when appointments of other Judges may be made, Besides, the possibility that the Governor-General may take some time to make other appointments could not have been overlooked by the Legislature. If the intention had been that the Chief Justice should not exercise the powers which he as Chief Justice or as a single Judge of the High Court could exercise till these appointments were made an express provision to that effect should have appeared in the section. If the objection raised is accepted, the conclusions would be that the Chief Justice could not act at all till at least the appointment of a second Judge was made, This second appointment was made in August 1948. The result would be that the High Court could come into existence only in August though, according to the Assam High Court Order this province was to have a High Court from the prescribed day (5th April). The Calcutta High Court had ceased to exercise jurisdiction from that day. This result could not have been meant. The interpretation placed on the relevant section by the learned counsel leads to anomalous results. The Legislature could not have intended that the Chief Justice was not to exercise any jurisdiction even as Chief Justice or as a Single Judge till the appointment of other Judges. If this intention is attributed to the Legislature, it would be reading something into the section that it does not contain.

4. The question, however, is not one of the first impression. It arose before a Division Bench of the Patna High Court in Emperor v. Sohrai Koeri reported in A.I.R (25) 1938 Pat. 550 : (40 Cr. L.J 41). A criminal case was argued before the learned Judges constituting the Bench. The bearing was concluded on 9th May and judgment was reserved. On 10th May news was received that Sir Courtney-Terrell C.J, of the Court had died in England. On 11th May, the objection was raised on behalf of the accused that there being no chief justice, the High Court was not properly constituted and therefore the Bench too had ceased to have jurisdiction to pronounce judgment in the case. The objection was based on Cl. 2, Letters Patent of the Patna High Court by which it was declared that the High Court shall consist of a chief justice and six other Judges. The Patna High Court was established under the Government of India Act, 1915. At the time the objection was raised in the Patna High Court, the Government of India Act, 1935, was in force. Clause 1 of S. 220 of the Act which enacts that every High Court shall consist of a Chief Justice and such other Judges a the Governor-General may from time to time deem it necessary to appoint was also considered. The Letters Patent of the Patna High Page: 8Court did not provide for succession to the Chief Justice or other Judges if a vacancy occurred. But as the Letters Patent were subject to the legislative power of the Governor-General in Legislative Council, the situation arising from the happening of a vacancy was to be dealt with under Section 222 of the Government of India Act, 1935. This section lays down that if the office of the Chief Justice of the High Court becomes vacant, those duties shall, until some person appointed by His Majesty to the vacant office has entered on the duties thereof, or until the Chief Justice has resumed his duties as the case may be, be performed by such one of the other Judges of the Court as the Governor. General may in his discretion think fit to appoint for the purpose. Even a temporary appointment by the Governor General would naturally take some time. The section, therefore, while taking note of the difficulty which may arise from the happening of a vacancy provides the remedy by laying down that the duties of the Chief Justice shall be performed by one of the other Judges whom the Governor-General may in his discretion think fit to appoint for the purpose. The implication is that the jurisdiction of the High Court would not be affected. The vacancy in the office of the Chief Justice arising from death or retirement would not affect the constitution of the Court. The jurisdiction of the other Judges also will not be affected. The duties of the Chief Justice could be performed by one of the other Judges appointed for the purpose by the Governor General. In the interval till the appointment is made no Judge of the High Court would be in a position to exercise the powers of the Chief Justice. But the Court will not loose its jurisdiction merely because there is a vacancy in the office of the Chief Justice. The office remains and therefore the constitution is not affected. By this process of the reasoning, the learned Judges of the Patna High Court came to the conclusion that where the office of a Chief Justice of a High Court remains vacant due to death of the Chief Justice or other cause, it cannot be said that till the vacancy is filled up there is no validly constituted High Court. Vacancy, in their opinion, did not mean total abolition of that office; it amounts merely to a suspension of the duties to be discharged by a Chief Justice. Other work and duties of the High Court could be carried on. If the High Court can remain properly constituted without a Chief Justice, it is obvious its constitution would not be affected if the Governor-General was not able to appoint other Judges of this Court when the Chief Justice was appointed. If the Chief Justice is the only judge of the High Court, he could perform the duties of the Chief Justice. He could also dispose of such judicial business of the Court as he was empowered to dispose of sitting singly, but the constitution of the Court could not be affected by delay in the appointment of other Judges required to be appointed under Section 220 of the Government of India Act or under R. 3, Assam High Court Order, 1948.

5. In Lalsingh v. Ghansham Singh, 9 ALL. 625 : (1887 A.W.N 154 (F.B)), the contention raised was that the Allahabad High Court was not properly constituted in as much as the number of Puisne Judges was less than five. The Letters Patent of the High Court provided that the High Court was to consist of the Chief Justice and five Puisne Judges. The omission to appoint the fifth Judge was the basis of the argument that the High Court was improperly constituted and therefore could not exercise any jurisdiction till the appointment of a fifth Judge was made. The objection was overruled. Mahmood J. in the course of the argument observed as follows:

“The fact that His Majesty has omitted for several years to fill up a vacancy does not alter the constitution of the Court or make it illegal nor does it amount to altering Cl. 2 of the Letters Patent. If your argument is correct, supposing a Judge was to die, the whole working of the Court would be brought to a standstill until his successor could be appointed.”

6. He even went further and remarked that even if the Crown was bound to fill up a vacancy within a specified time and acted illegally in not filling it up it did not follow that the constitution of the Court is vitiated so as to deprive the remaining Judges of all other jurisdiction.

7. In Collector of Etah v. Golab Kunwar, A.I.R (22) 1935 ALL. 322 : (4 A.W.R.H.C 79), the same question arose in another form. The objection to the constitution of the Court was on the ground that the provisions contained in cl. 4 of Section 101 of the then Government of India Act had been contravened. The clause referred to above provided that at least one third of the Judges of the High Court shall be barristers. It was argued that on the appointment of one of the Pusine Judges of that Court as the Chief Justice of the Lahore High Court, the constitution of the Allahabad High Court had broken down as no barrister Judge had been appointed in his place. Therefore the Chief Justice and other Judges lost all their jurisdiction to dispose of their judicial work. The contention was overruled. It was pointed out that if barrister Judge or a civilian Judge happens to dm suddenly there is bound to be a vacancy and the Government would naturally take some time to make a suitable appointment. If in the interval the High Court were to be without Page: 9any jurisdiction, some provision in the Government of India Act to that effect must have existed. If it does not exist it cannot be read into the Act. The ratio decidendi in all these cases is the same and we are in respectful agreement with the view taken in these cases. The result is that the vacancy in the office of the Chief Justice or in the office of a Judge necessary for the Court does not affect the constitution or the jurisdiction of the Court. The High Court retains its jurisdiction and its function can be carried even in the absence of a Chief Justice or other Judge or Judges necessary for the Court. In the absence of a Chief Justice it will not be possible for any one to perform his functions but the other Judges of the Court could continue their work and the High Court could function as such. Similarly a Chief Justice could perform his duties and also discharge his function as it single Judge in the absence of other Judges. The objection has got no force and is repelled.

8. The second objection raised is that under R. 15 of chap. V relating to general rules of procedure (the Rules of the High Court of Judicature at Fort William in Bengal), an application of revision must be presented direct to a Division Bench. In this case, the petition was presented to the Chief Justice alone and he issued the rule. The contention is that the presentation was invalid and the learned Chief Justice was not competent to issue the rule sitting singly. It is correct that the petition should have been presented to a Division Bench. But at the time the petition was put in there was only one Judge of this Court functioning. No Division Bench could have been constituted. The petition in those circumstances could have been received only by the office for formal presentation before a Division Bench later. That procedure would have avoided technical objection. The presentation of the petition to a single Judge and the issue of a rule by him, however, cannot be fatal to the petition. It is now before a Division Bench. It can be taken as formally presented now and the issue of a further rule can be dispensed with as the parties are before the Court and the record of the case is also available. There is thus no difficulty in the disposal of the petition. The learned counsel has pointed out that the petition, if taken as presented now will be barred by time. There is no period of limitation provided for petitions of revision and if there had been any, this could be a very fit case for the condonation of delay as the petitioner is not guilty of any laches or negligence. The petition was actually put in at a time when no objection on the score of limitation could have been taken. The objection is overruled.

9. The facts bearing on the contentions raised in the petition may now be briefly stated.

10. Plaintiffs (opposite parties 1-4) instituted a suit for recovery of Rs. 70,000 by the sale of the mortgaged property against the representatives of the mortgagors and other persona interested in the equity of redemption on 2nd January 1941. It took about six months to get written statement from the defendants. On 14th November 1941, an interim order staying further proceedings, in the suit was issued by the Calcutta High Court. This was vacated on 19th June 1942. In pursuance of another order by the High Court, a commission for the examination of a woman was issued. It was received back un-executed on 14th December 1942. On 18th December 1942, the suit was fixed for peremptory bearing on 9th January 1943. The order was communicated to the counsel for the plaintiffs on 21st December 1942. The plaintiffs got the information about the order on 29th December 1942. They had already left for their native place in the district of Arah in Bihar in November 1942. For reasons given in their application for adjournment of the case presented on 9th January, they applied for adjourment through their counsel. The adjournment was refused. The counsel then withdrew from the case as he had no further instructions and the suit was dismissed for default on that date. On 8th February 1943, plaintiffs applied for restoration of the suit under O. 9, R. 9. They explained their inability to arrange for the prosecution of the suit on 9th January 1943, by stating that when the date for hearing was fixed, they were in Arah District in Bihar. Further, before getting information about the date of hearing, plaintiffs 1 and 4 had fixed the dates for the marriages of their sons. These marriages were to be celebrated on 16th and 19th January 1943, respectively. They could not, therefore, arrange to produce evidence on 9th January and then go back to their native district in Bihar in time to arrange for the celebration of marriages. Plaintiff 2 who was ill, had sent a medical certificate which was presented to the Court when the request for the adjournment of the case was made on plaintiffs' behalf. Plaintiff 3 was said to be a chronic invalid.

11. On 29th March 1943, Mr. I. Rasul, who had dismissed the suit for default, ordered its restoration. He was inclined to the view that no sufficient cause prevented the plaintiffs from appearing in Court on 9th January, but in view of the statement of defendant 1, in para, a of the written statement and for the ends of justice, he agreed to set aside the order of dismissal Page: 10of the suit and directed it to be restored to the file.

12. Defendant 1 challenged the correctness of the order by a revision petition in the High Court at Fort William. The case came before a Division Bench of the High Court. The learned Judges held that the order of restoration was passed

“under a vague mixture of reasons, partly for reasons which are for consideration under O. 9, R. 9 of the Code, and partly for reasons which would justify action under S. 151, and the parties have been put into some difficulties.”

13. In these circumstances they held that instead of their disposing of the case on the merits, it was more suitable that the case should go back for a proper order to be passed by the Court below. The learned Judges laid down that the Court could not restore the case under its inherent powers under S. 151 of the Code, if it found that there was no sufficient cause for restoration within the meaning of O. 9, S. 9. The case was, therefore, remanded to the lower Court for disposal of the application under O. 9 R. 9 on the evidence already on the record. The Court was further directed to come to a clear finding one way or the other whether it considered or did not consider that there was sufficient cause for non-appearance on 9th January and to restore the case or reject the application accordingly.

14. On remand, the case again came before Mr. I. Rasul. He rejected the petition under O. 9, R. 9 holding that sufficient cause was not shown for non-appearance of the plaintiffs on 9th January. Plaintiffs preferred an appeal against this order to the High Court. It was held in appeal that the learned Judge had not heard the parties or their pleader before disposing of the case after remand. The order rejecting the application was set aside. The learned Judge was directed to dispose of the application under O. 9, R. 9 according to law and in the light of observations made in previous order of remand. He was also directed to hear the pleader of the parties or parties themselves before disposing of finally the application for restoration of the suit.

15. When this case was received back, Mr. Rasul had been transferred and the petition was disposed of by Mr. D.N Hazarika, Spl. Sub-Judge, his successor in office. He felt satisfied that there was sufficient cause for the non-appearance of the plaintiffs on the date of hearing and setting aside the dismissal of the suit ordered its restoration on 18th March 1948. The plaintiff petitioners were directed to pay Rs. 50 to the opposite party as costs within a month from the date of the order.

16. Defendant 1 had again come up on revision to this Court against this order.

17. The first contention raised by the learned counsel for the petitioner is that Mr. D.N Hazarika had no jurisdiction to hear and dispose of the petition. He contended that the case had been remanded for disposal by Mr. Rasul, who had dismissed the suit for default and had later restored it. His order being vague it had to be set aside. It is urged that considering the reasons on which the order of Mr. Rasul dated 29th March 1943 was set aside the intention of the High Court was that Mr. Rasul alone should dispose of the petition by a proper order. We have been taken through the whole of the order and its substance has been reproduced above. The main reason why this order was set aside was that it was not clear whether in the view of the Judge sufficient cause had been shown for non-appearance on 9th January 1943 or not. There were observations in the order of the learned Sub-Judge which indicated that he was making use of his inherent jurisdiction under S. 151. Since the order was not clear, the case was remanded. But in the last paragraph of the order, which embodies the directions of the Court, it was said that the case is remanded to the ‘lower Court’ for disposal of the application on the merits and on the evidence already on record. We are not prepared to read in this order any direction that the case was to be disposed of by Mr. Rasul and not by his successor.

18. The second order of remand merely directs that parties must be heard before the disposal of the case. In all other respects, the previous order of remand was allowed to remain in fact and was to be followed. In these circumstances, the contention has got no force.

19. The learned counsel has relied on two authorities viz., Bhoyro Lal v. Mokoond Lal, 2 Suther 275 and Bhyrub v. Khettur Mohun, 5 Suther 124, in support of his contention, These case have no application to the facts of the case before us. In both these cases, the remand orders directed the Judge of the Court below to give their reasons for their decisions which they had omitted to state. There was to be no rehearing of the matter. In the present case, the direction in the order of remand was that the application be disposed of according to law after hearing the parties. These authorities, therefore, do not assist the petitioner in any way.

20. The second contention raised is that the order of the special Sub-Judge is without jurisdiction in as much as all defendants were not properly served. It is admitted that the petitioner was served, appeared, and was heard. But, it is contended that service in the case of Page: 11defendants 9-12 had not been duly effected and therefore the Court could not dispose of the petition in their absence. It appears that after the last order of remand, substituted service was effected on these defendants. The process-server's report was verified by an affidavit. This is not denied. The learned counsel points out that after the verification of the report by the process server, the Court should have declared that the summons had been duly served under O. 5, R. 19. The failure on the part of the Court to record an order declaring that service had been duly effected deprived it of all jurisdiction to dispose of the petition. He has not cited any authority in support of this proposition. It is a question whether declaration of due service under R. 19 must be in express terms, There is a conflict of authority on the point. But even if it is assumed for purpose of argument that an express declaration of due service is necessary, the omission to declare due service under the rule would be an irregularity on the basis of which the party adversely affected by the omission may ask for an opportunity to be heard. It would not affect the jurisdiction of the Court as regards parties that are present before the Court. The learned counsel for the petitioner could not cite any authority in support of the proposition that the order of the Court below would be wholly without jurisdiction merely because there was no declaration of due service in respect of some defendants who ace not challenging the order and against whom the order has already become final. It is worthy of note that defendants, on whom substituted service was effected, included a representative of a mortgagor and some mortgagees. They did not contest the petition for restoration of the suit at any stage. They have been served on this petition and have not appeared. It is clear that they are not feeling aggrieved by the order. The petitioner cannot take advantage of the irregularity, if any, as it is not possible to hold that the order of the Court below was without jurisdiction as contended by his learned council even as regards parties who were present and were heard.

21. We are not convinced that the declaration of due service in express terms is imperative. We are inclined to the view taken by Oudh Chief Court, Harcharan v. Md. Azizullah, A.I.R (19) 1932 Oudh 326 : (141 I.C 759) and the Lahore High Court, Tehal Singh v. Chamchal Singh, A.I.R (21) 1934 Lah. 985. The declaration may be implied in the proceedings. Where such a declaration exists though by necessary implication, there would be no irregularity in the service and proceedings in the Court below will not be open to any objection. Now if Court had not been satisfied that the service on defendants 9 to 12 had been effected duly it would have ordered fresh service. This was not done. The implication, therefore, is obvious and deprives the objection of all its force.

22. The last contention is that sufficient cause for non-appearance was not made out and the order of the Special Sub-Judge was not sustainable as it took judicial notice of certain facts against the provisions contained in the Evidence Act and also relied on a medical certificate which had not been proved according to law. It is correct that the Court should not have taken judicial notice of the fact that railway travel at the time (January, 43) was uncertain. This was a matter for proof. Similarly, the unproved medical certificate could not be considered as evidence. But even if the medical certificate is not taken into consideration and the uncertainties of railway travel in January 1943 are not presumed, the order is not liable to interference. The learned Judge came to a definite conclusion that one of the plaintiffs was a chronic invalid. Another was ill. There was oral evidence about his illness, which the learned Judge did not reject. The other two plaintiffs according to evidence, had left Assam before the middle of November 1942. They learned about the hearing on 29th December, They had already made arrangements for celebrating the marriages of their sons on 16th and 19th January 1943. In these circumstances, in his view, it was extremely difficult for them to attend the Court on 19th January and then go back to their native district and make arrangements for two marriages. We think he was right in taking this view of the matter. The case had been proceeding at a very slow pace. When leaving the jurisdiction of the Court, plaintiffs had no idea that the case will be fixed for a peremptory hearing so early. In view of the circumstances in which they found themselves, their request for adjournment was reasonable. Plaintiffs took some risk in applying for adjournment, without making arrangements for the prosecution of the case in the hope that they will get it. But for this, a suit in which such a huge sum is being claimed need not have been dismissed. They could have been ordered to pay costs. As held by the Subordinate Judge, there is no basis for the view that plaintiffs were absent wilfully or without any reasonable cause. It is possible to arrive at this finding without taking judicial notice of the conditions of railway travel at the time and without taking into consideration the medical certificate objected to by the learned counsel. We have, thus, no basis for interference with the finding of the Court below that sufficient cause for non-appearance has been made Page: 12out. The order ad van tea substantial justice and gives the parties a chance to have their disputes settled on the merits. We, therefore, decline to interfere. The petition is dismissed with costs.

Thadani, A.C.J:— I agree.

23. Petition dismissed.