Authored By : Das, Robert Lindsay Ross

Das, J.

1. This is an appeal from the order passed by the learned Subordinate Judge of Bhagalpur on the 5th January, 1920, refusing to restore a suit which was dismissed by him under Order XVII, Rule 3, of the Civil Procedure Code. The application was made under Order IX, Rule 9.

2. The learned Subordinate Judge thought in the first place that an application under Order IX; Rule 9, was not maintainable inasmuch, as he had proceeded under Order XVII, Rule 3. In the second place, examining the circumstances disclosed in the case he came to the conclusion that no sufficient cause was shown by the petitioner entitling him to an order for restoration of the suit.

3. I will first deal with the question of law raised. The order sheet shows that on the 10th November, 1919, the plaintiffs applied for adjournment of the suit which was refused by the learned Subordinate Judge. The order sheet then records the following order:-

"The case is opened. The plaintiffs apply for one day's adjournment to produce witnesses. I grant this short adjournment on the distinct understanding that the witnesses must be produced at 11 a.m. tomorrow."

4. Then on the 10th November, 1919, the order sheet records the following order :-

"The defendants are ready. The plaintiffs apply for time for 2 days with a wire attached to the application, I do not see why I should grant this time. A party cannot be allowed to take his own choice and produce evidence when he chooses to do so. There is no justification for the plaintiffs not being ready with witnesses in this old suit. I reject the petition as groundless."

5. Then it appears from the order sheet that the case was taken up the pleader for the defendants opened his case and called a certain number of witnesses after which the learned Subordinate Judge delivered judgment dismissing the suit with costs. The question arises, viz., were the circumstances such as entitled the learned Subordinate Judge to act under Order XVII, Rule 3 of the Code.

6. Order XVII, Rule 3, runs as follows:-

"Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses; or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, not withstanding such default, proceed to decide the suit forthwith."

7. The learned Government Advocate appearing for the appellant argues that he had no jurisdiction to act under Rule 3 but that he should have proceeded under Rule 2 which runs as follows:-

"Where, on any day to which the hearing of the suit is adjourned the parties or any of them fail to appear, the Court may proceed to dispose of the suit in one of the modes directed in that behalf by Order IXor make such other order as it thinks fit."

8. Now in my view the case was one under Rule 2 and not one under Rule 3. There must be some difference between Rule 2 and Rule 3, the difference seems to me to be this : that when there are materials in the record on which the Court can decide the case the matter falls properly under Rule 3 and not under Rule 2.

9. In this case I will assume that the plaintiff's pleader opened the case : but he did not call any evidence but withdrew from the suit. It is true that the learned Subordinate Judge proceeded to record evidence called on behalf of the defendants but then he had no business whatever to adopt this course. If neither party adduced evidence the suit on the pleadings would fail, and, therefore, it was wholly unnecessary for the learned Subordinate Judge to direct the defendants to produce their evidence.

10. It seems to me that he called upon the defendants to produce the evidence in order to give himself jurisdiction to act under Rule 3. In my view the case fell under Rule 2 and he should not have called upon the defendants to adduce evidence in the case. My conclusion is supported by the decision of Mookerjee, J. in the case of Mariannissa v. Ramkalapa Gorain (1907) 34 Cal. 235=5 C. L. J. 260. The first point urged on behalf of the appellant must, therefore, prevail.

11. The second point is one of fact, namely, was there sufficient cause entitling the plaintiffs to an order for restoration. The case of the plaintiffs was that one of the plaintiff's Madan Mondal, was ill and his karpardaz Ramdhari was in the Patna High Court.

12. The learned Subordinate Judge says that Madan Mondal was only one of numerous plaintiffs and that there was no reason whatever why the others should not have been in Court to prosecute the suit; but then it may well be said that Madan Mondal was looking after the suit and that it was necessary for him to personally prosecute the same.

13. The learned Subordinate Judge thought that the case was an old one and the plaintiffs were not entitled to any indulgence, but I am not prepared to admit that the case was an old one. The suit was filed on the 14th November, 1918, and he dismissed it for default on the 11th November, 1919. The application was for two days time, and if he had granted the adjournment which was asked for by the plaintiffs, he could have disposed of the suit within a year of its institution. I cannot, therefore, regard the suit as an old one on the 11th November, 1919.

14. The other ground assigned by the learned Subordinate Judge is that "the plaintiffs were never ready before. "I have carefully gone through the order sheet and it certainly does not support the conclusion of the learned Subordinate Judge. For instance, I find that on the 14th May, 1919, the case was adjourned to the 25th June, 1919, on the application of both parties. On the 25th June, 1919, it appears that the plaintiffs were ready to proceed with the suit, but that the Court was otherwise engaged and adjourned it to the 11th August, 1919.

15. It is perfectly clear that the plaintiffs were ready to proceed with the suit on the 25th June. On the 11th August, 1919, the plaintiffs applied for adjournment but because they applied for adjournment on the 11th August, 1919, it does not follow that the plaintiffs were never ready before. The order sheet shows that on the 25th June they were ready, and willing to proceed with the suit. Having considered the whole matter very carefully I have come to the conclusion that the learned Subordinate Judge should have granted two days time.

16. We set aside the order of the learned Sub-ordinate Judge and restore the suit. The learned Subordinate Judge will fix. a date peremptorily for the disposal of the suit and will dispose of it on the date fixed by him.

17. The appellants must pay the costs of the respondents both in this Court and in the Court below, and the costs must be paid on or before the date fixed by learned Subordinate Judge for the disposal of the suit.

Robert Lindsay Ross, J.

18. I agree.