MANGAL MISRI Vs. RAM BAHORSE AND ORS

JUDGEMENT

(1.) The circumstances out of which this revision arises are somewhat unusual.

(2.) The applicant Mangal Misra son of Prabodh Misra, describing himself in the plaint as the resident of village Jaitha, pargana Amsin, district, Faizabad, and now staying in Poundey city, district Prome Burma, filed a suit for possession against the opposite-parties as long ago as the 9th of May, 1947. This description is repeated in the memorandum of revision. The suit was filed throughout his son Jai Narain Misra as true and Lawful attorney for his father. The power of attorney which is on the record shows the residence of the two as identical. The plaint was signed by a pleader. Issues were framed. One of the Defendants had disputed the identity of the Plaintiff, According to him the Plaintiff was not Mangal Misra but Mangal Singh Thakur. It was pointed out that before witnesses deposed, as to the Plaintiff identity it was necessary to secure his attendance in Court. On February 6, 1948, the Court ordered the Plaintiff to appear in person as ho was admittedly a resident of Faizabad district. Two applications were made on behalf of the Plaintiff one for cancellation of the order directing his appearance in person and the other for issue of a commission to him. Both these applications were dismissed by an order dated February 2l, 1948. In this order the learned Munsif observed that the Plaintiff was a permanent resident within the jurisdiction of the Court and the mere fact that the happened to be in Burma for the time being or when the suit was filed would not take away the jurisdiction of the Court to order his attendance. This order was challenged in revision to this Court but as the order was in its nature interlocutory, the revision was dismissed on July, 22, 1948. The Munsif in the meantime was transferred and an attempt was made to reopen the matter before his successor. His predecessor had ordered that if the Plaintiff did not appear on the next date of the hearing, his plaint shall be rejected. The Plaintiff again did not appear. The plaint rejected a further adjournment was given on the 12th July, 1948, to the Plaintiff to present himself on September 7, and pay Rs. 50/- as costs. Upon this date he neither presented himself nor paid the costs. His Counsel, however, applied that the Plaintiff was unable to attend due to disturbances in Burma but did not support this allegation by any affidavit The Court thereupon held that the Plaintiff was avoiding appearance in Court on some pretext or other since the 6th February, 1943, and disobeying the orders of the Court. Accordingly the learned Munsif dismissed the suit under Order IX Rule 12 of the Code of Civil Procedure. Against this order the present revision application has been preferred.

(3.) The only point, which has been urged in support of the revision, is that the lower court had no jurisdiction under Order V Rule 4 of the Code of Code of Civil Procedure to order the Plaintiff to appear in person, as ho did not reside within the local limits of the Court's ordinary original jurisdiction. The contention appears to me to be devoid of force. Rule 4 says.