Authored By : B.K. Mullick, Jwala Prasad

B.K. Mullick, J.

1. The facts giving rise to this appeal and application for revision before us are as follows:--On the 18th of December 1916 the plaintiff filed a mortgage suit against the defendants. On the 3rd of January summons was issued fixing the 6th of February 1917 for hearing. On the 6th of February 1917 time was allowed till the 20th of February 1917 for settlement of issues, and the second party defendants were directed to file their defence before that date. On the 7th of March 1917 the second party defendants filed their written statement, and the 20th of March 1917 was fixed for settlement of issues. On the 7th of March 1917 the plaintiff made an application for the amendment of the plaint. He said that the three defendants who had been described by him as adults were in fact minors, and he prayed for permission to amend the plaint by making an entry to this effect, and moved the Court for time to appoint a guardian ad litem in respect of these minors. On the 20th of March time was given to the plaintiff to get the plaint amended. On the 4th and 10th of April further time was given for the same purpose. On the 16th of April the plaintiff again applied for time, but the Court refused to grant his prayer. Thereupon the Court recorded the following order:--

No step taken for prosecution, the suit is dismissed thereon.

2. Against that order the plaintiff filed an application on the 20th of April asking that the suit he restored. On the 5th of May the Court, having examined the plaintiff, was of opinion that no reason had been given for the plaintiff's absence from Court on the 16th of April and he declined to restore the case. The plaintiff thereupon filed an appeal to the District Judge against the order dismissing the suit as well as against the order refusing to restore it. The District Judge held that no appeal lay to him, and he, therefore, declined to interfere. Against that order of the District Judge the plaintiff files Second Appeal No. 99 of 1918 to us. He has also an application for revision, which is No. 330 of 1917.

3. Now, it is admitted that no second appeal lies, and, therefore, so far as Appeal No. 99 of 1918 is concerned, it must be dismissed with costs; but with regard to the application for revision the matter stands differently.

4. It appears that under Order XVII of the Code of Civil Procedure the Court had power to proceed under rules 2 and 3 for the disposal of the suit. As the plaintiff had failed to amend the plaint the Court, notwithstanding his default, had jurisdiction to proceed to decide the suit forthwith. That the Court did not do. The order recording that the suit is dismissed is not a decision of the suit. Then the question is whether the Court acted under rule 2. It is contended by the learned Vakil for the opposite party that the Court has acted under that rule, read with Order IX, and that it has in fact dismissed the suit under the provisions of rule 3 of this latter Order. Now it is quite clear that the Court did not act within the terms of that Order. It is only when neither party appears when the suit is called on for hearing that the Court may make an order that the suit be dismissed. What is there in this case to show that the plaintiff did not appear It is admitted that the defendant did not appear, but from the fact that the plaintiff's Pleader asked for further adjournment for the purpose of amending the plaint it would seem that he certainly was present in Court, but then it is argued that mere presence in Court is not sufficient, there must be some act or intention to actively prosecute the suit. That is certainly true, but the Subordinate Judge has not given us any indication that the plaintiff's Pleader was not anxious to prosecute the suit. The Subordinate Judge has used a formula which does not indicate whether or not the conditions necessary for the exercise of powers under rule 3 were present. The expression "no step taken for prosecution" does not satisfy us that the plaintiff's Pleader was not present for the purpose of continuing the suit if the Court chose to continue the trial. As a matter of fact it was not necessary for the Pleader to do any act at that stage, because even though the Court was unwilling to grant an adjournment for the purpose of amending the plaint, it was open to the plaintiff to continue the suit upon the plaint without amendment, and it was the duty of the Court in that case to frame issues for the purpose of the trial. We fail to see why the Court, although it had declined to give any adjournment, did not proceed there and then to frame issues and to continue the heading. It is not for the petitioner before us to satisfy us by an affidavit or otherwise that he did in fact make such a request to the Court. It is sufficient if the order itself fails to show that the ingredients necessary for the exercise of the powers under rule 3 were not present. That duty is in every case cast upon the Court which makes the order, and it is for this reason that it is particularly necessary when suits are dismissed or decreed under the provisions of Order IX or Order XVII, that the Court should be astute to state under what provision of law it has acted, otherwise there is the greatest confusion caused when applications are made to this Court either by way of appeal or revision of the order. Therefore in this case we are not satisfied that the plaintiff failed to appear within the meaning of Order IX, and that being so, the Court acted without any authority in law for the dismissal of the suit. It is contended that the Court had jurisdiction to dismiss the suit even if it had made an error in law. That is no doubt correct, but what the Court here appears to have done is to pass an order of dismissal without applying its mind to any provision of law at all. That amounts to a refusal to exercise jurisdiction, in other words, a refusal to do his duty, and, therefore, section 115 of the Code of Civil Procedure would be applicable. In any event this is eminently a case under section 107 of the Government of India Act because there has been a denial of the right of fair trial. It was the Court's duty to go on, if the parties so wished, with the trial, from the stage which it had reached on the 16th of April, and the refusal to do so is a matter which can be cured by the exercise of our powers of superintendence. Therefore, the result is that the order of dismissal will be set aside and the Court will be directed to proceed with the trial from the stage at which it was on the 16th of April 1917. The petition will be allowed.

Jwala Prasad, J.

5. The plaintiff's suit was for the enforcement of a mortgage executed in his favour by defendants first party. The defendants first party did not appear in the suit. On the 7th March the defendants second party filed their written statement, and the case was fixed for the 20th March for settlement of issues. It appeared from the written statement that some of the defendants second party were minors, and the plaintiff applied for leave to amend the plaint by describing them to be minors and for the appointment of their guardian ad litem under Order XXXII of the Code. The plaintiff, however, failed to amend the plaint in spite of his having taken repeated adjournments. On the 16th of April 1917 the Court refused to allow further time for amendment and passed the following order:--

No steps taken. Suit dismissed for default.

6. This is clearly not a proper disposal of the suit, and the Court has failed in its duty to try the suit. Under Order XVII, rule 3, the Court, after refusing time to the plaintiff to amend the plaint, was required to "proceed to decide the suit forthwith." The only effect of the plaintiff's failure to amend the plaint by describing some of the defendants as minors was that the said defendants were deleted from the suit as if no action was laid against them. There were besides the said minors the defendants first party, mortgagors who had not appeared in the suit and some of the major defendants second party, who had already filed their written statements. The obvious duty of the Court, therefore, was to proceed to try the suit and decide it on the merits as against these defendants, and as some of the defendants had already filed written statements, the first thing that the Court had to do was to frame issues in the case and to continue the suit. From the order-sheet it does not appear that the plaintiff, after his application for time to amend the plaint was refused, absented himself from the Court, and declined to go on with the suit, nor does it appear that the plaintiff was required at that stage by the Court to take any step in the suit which he failed to do. It seems to me that the Court did not apply its mind at all to decide the suit so far as the defendants first party or those of the defendants second party who had filed written statements are concerned. In this view the Court failed to exercise the jurisdiction that was vested in it by law to try the suit. I, therefore, agree with the order proposed by my learned brother.