KANHAIYA AND OTHERS Vs. SHEIKH RAMZAN AND OTHERS

JUDGEMENT

(1.) This is defendants appeal arising out of a suit for injunction to direct the defendants to remove the constructions made by them in the form of a Chabutra and to restore the land to its original condition and to repair the graves to make them as they were before the construction of the Chabutra. According to the plaintiffs, the land was a grave yard and the defendants were not entitled to encroach upon it by claiming it to be the land appurtenant to the temple. The defendants case was that it was a part of the land attached to the temple and was not part of any graveyard. The suit of the plaintiff was decreed by the trial court and the lower appellate court dismissed the appeal.

(2.) Learned counsel for the defendants in this appeal has primarily attacked the decree of the court below on the ground that the defendants were not afforded opportunity to contest the suit in accordance with law. It appears that plaintiffs had led some evidence in the case, the case was then adjourned to 13th Nov., 1961 on the defendants application. On that date plaintiffs examined some witnesses. As the senior counsel for the defendants was not available the defendants could not proceed with the hearing and prayed for adjournment. Learned Munsif, however, treated the evidence as closed, and after hearing the plaintiffs counsel, fixed 14th Nov. for pronouncing the judgment. On the same date i.e. 13-11-1961. Later in the day, an application was moved on behalf of the defendants for fixing another date for taking defendants evidence. The judgment was then not pronounced on 14-11-1961 and the application was put up for orders on 15-11-1961. On that date the learned Munsif alloyed the application subject to payment of costs within two weeks and in the event of non-compliance the order was directed to stand vacated. The defendants could not pay the costs to the plaintiff by 22-11-1961. On 24-11-1961, the date fixed in the case, an application 57-C was moved stating that for reasons indicated therein costs could not be paid and praying that the cost may be accepted and the defendants be permitted to lead their evidence. The application was considered and rejected on 25-11-1961. The learned Munsif again did not take evidence and fixed 27th Nov. 1961 for judgment. The ground on which he rejected the application was firstly that the order allowing the adjournment was an order which stood automatically vacated on the cost being not paid within the time allowed and, secondly that there was not sufficient cause for non-payment costs within the time allowed. This view the court took on the finding that although one of the defendants could not come because of illness of his sons wife the other defendants could have come to pay costs within time.

(3.) In the appeal against the decree it was contended that the decree was bad as the defendants were denied a fair trial and it was urged that the trial court had not proceeded in accordance with law in refusing to extend time for payment of costs and permitting the defendants to lead their evidence. The appellate court did not reconsider the matter on merits, but disposed of the contention by the following observation:-