MT. GUNADA KUMARI Vs. MT. BASANTI KUMARI

JUDGEMENT

(1.) THIS petition of revision is directed against the order of the Munsiff, Gauhati, dated 12 -4 -1951, by which he ordered the restoration of a suit which had been dismissed for default on 28 -11 -1950. The order dismissing the suit in default was in the following terms :

(2.) THE order by which the suit was restored was based on the finding of fact, that some of the plaintiff's witnesses could not attend the Court on 28th November, by reason of illness and plaintiff, therefore, had reasonable grounds for asking for adjournment which according to the learned Munsiff had been refused on inadequate grounds.

(3.) FROM the order of 28 -11 -1950, it appears that the Court when dismissing the suit did not have Order 17, Rule 3 in mind. It stated that the plaintiff was not ready and asked for adjournment on account of the absence of the witnesses. The fact that defendant was ready was noted. The reason for refusing the adjournment is that the case had dragged on for long. The prayer for adjournment was rejected and the suit dismissed for default. Since the Court did not indicate in express terms whether it acted under Order 17, Rule 3 or under Order 17, Rule 2, it has to be determined from the circumstances of the case, Sri Ram Mahtab Singh v. Mahtab Hassan, AIR 1928 Lah 427 , whether the order was really one under Rule 2 or Rule 3. The emphasis in the order is on the fact that plaintiff was not ready and the defendant was ready. That shows that plaintiff's advocate was not willing to proceed with the case. If he was ready to proceed with the case there could not have been any dismissal for default. The Court when refusing the adjournment also dismissed the suit for default. There was no interval. It could not, therefore, be stated in the order that after the refusal of adjournment the plaintiff's advocate retired from the case.