RUKMANSA RAJANSA HOSMANI Vs. SHANKARGOUDA BASANGOUDA LAKHYAL

JUDGEMENT

(1.) THIS is an appeal against a decree passed by the First Class Subordinate Judge of Bijapur. The plaintiff sued for a sum of approximately Rs. 11,000. The defendants admitted that a sum of Rs. 5,976 and certain interest was due.

(2.) AT the first hearing the Court framed issues under Order XV, Rule 3, Sub-rule (1), of the Civil Procedure Code, and then adjourned the further hearing, under Sub-rule (2), to February 15, 1939. On that date the plaintiff alleged through his pleader that he was ill, and asked for an adjournment. The adjournment was refused, and the pleader thereupon withdrew, saying that he had no instructions to proceed. The learned Judge then dealt with the case on merits and answered the issues. He came to the conclusion that the defendants proved that only the amount admitted by them was due; in effect, therefore, he rejected the balance of the plaintiff's claim, and passed a decree against the defendants for the amount admitted to be due, and directed payment by certain instalments.

(3.) IT is then argued that the course was justified under Order XVII, Rule 2, or Rule 3 Order XVII deals with adjournments, and Rule 2 provides that 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 IX or make such other order as it thinks fit. This was an adjourned hearing, and, therefore, that rule applied, and the learned Judge could either have disposed of the matter by making an order under Order IX, Rule 8, or by making such other order as he thought fit. Now, it is clear that those last words of the rule confer a discretion, but it is a discretion which must be exercised judicially. A Judge, in exercising such discretion, may grant a further adjournment, or, if the circumstances, justify such a course, I think that he can pass an order on merits, but he must have material before him to justify that course. If there is no evidence before him, he cannot in the exercise of judicial discretion proceed to deal with the case on merits. In this case he had no material enabling him to do so, since there was no evidence as to the balance of the plaintiff's claim. Therefore, the learned Judge was bound, either to dispose of the matter under Order IX, or else to grant an adjournment. IT was not, in my opinion, open to him on the material before him to dispose of the case on merits.