Fazl Ali, J.This is an appeal by the defendants in a suit for declaration of title to certain properties and for confirmation of possession. The only point urged in this appeal is that the defendant had no opportunity to defend the suit properly as the trial Court refused to summon the witnesses although an application had been made for the summoning of those witnesses. In order to appreciate the point raised by the learned advocate for the appellant it will be necessary to refer to a few dates. The suit was filed on 8th October 1925 and issues were settled on 16th February 1926. After a few adjournments the suit was fixed for hearing for 21st April 1926. Two days before this date, namely, on 22nd April 1926 the defendant applied for summons to his witnesses and the Court ordered the application to be put up on the date fixed for the hearing of the case. On 24th April 1926 both parties applied for time. The Court, however, refused to adjourn the case. The parties thereupon filed hazira and the suit was decided by the Court on the evidence adduced by the plaintiff and one of the defendants.

2. Now, the point raised in this case is that the trial Court committed, an error of law in proceeding to hear the case without issuing summons to the witnesses for the defendants in spite of his application of 22nd April 1926. The learned advocate for the appellant relies in this connexion upon Order 16, Rule 1, which Jays down:

At any time after the suit is instituted, the parties may obtain on application to the Court or to such officer as it appoints in this behalf, summonses to persons whose attendance is required either to give evidence, or to produce documents.

3. Now, if I had to interpret this provision on my own account I would not be inclined to go so far as the learned advocate wishes me to go and hold that in every case where an application is made for the issue of summons, however belated that application may be, the Court is bound to issue summons. The learned advocate for the appellant, however, has cited a number of decisions in which it has been uniformly held that it is the duty of the Court to summon the witnesses for whose attendance an application is made by a party and that a Court cannot reject such an application on the ground that it has been made too late.

4. It has been pointed out that although it would be open to the Court in such a case, if it finds that the application has been made late not to adjourn the hearing of the case on the date fixed for the hearing, even though the witnesses may not be present in Court, yet it is not within the province of the Court to refuse to summon the witnesses if an application for summoning the witnesses has been made before the Court: see in this connexion Saibai Govind Lavlekar Vs. Balkrishna Pandurang Bane, , Sardari Lal v. Mohar Singh AIR 1925 Lah. 67, Muhammad Hayat v. Ghulam Muhammad [1920] 60 I.C. 656. In my opinion having regard to these decisions it is no longer open to me to take a different view and I must hold that the learned Munsif committed an error of law in not issuing summons in this case.

5. The question then arises as to what would be the proper course to be adopted by this Court. A similar situation seems to have arisen in the case of Bhagwat Das v. Debi Din [1894] 16 All. 218. The learned Judges who decided that case held that if the appellate Court finds in such a case that the refusal has injuriously affected the decision of the case it should set aside the decree but if it finds that if the refusal has not affected the decision of the case injuriously, it should not interfere with the decree.

6. It has also been held in several cases that if the application is not a bona fide one the Court may not issue summons.

7. The difficulty in this case is that there is neither any finding by the trial Court nor by the lower appellate Court that the application was not a bona fide one; nor is there any finding in the decision of the lower appellate Court that the refusal by the trial Court to issue summons has or has not injuriously affected the decision of the case. In these circumstances I would set aside the judgment and the decree of the lower appellate Court and send back the case to that Court for disposal according to law. The lower appellate Court will come to a finding on the materials before it as to whether the application made by the defendant can be characterised as a bona fide application or not and whether the refusal of the Court of first instance to issue summons has or has not injuriously affected the decision of the case.

8. If the lower appellate Court finds in favour of the defendants, the course to be adopted in that case will, be to direct a retrial. If, however, the lower appellate Court finds against the defendants on any of the points indicated by me the appeal may be dismissed.

9. The lower appellate Court will also consider whether in the circumstances of the case the trial Court should or should not have granted an adjournment. Costs will abide the result.