MOOLRAJ Vs. NARSINGH DAS

JUDGEMENT

(1.) THIS is an appeal by Moolraj and others, who were plaintiffs, against dismissal of their suit by the Civil Judge of Jodhpur.

(2.) THE history of the case may be narrated in order to understand the point involved. THE suit was filed in April, 1951, and was based on a promissory-note. THE written Statement by the defendant respondent was filed on the 8th of February. 1952. THEreafter 17th of April was fixed for replication and framing of issues. Issues were framed on that date and the case was then fixed for hearing on the 11th of August, 1952. On that date the plaintiffs were absent. One Mr. Ranchor Das appeared on their behalf and presented an application for adjournment on the ground that Moolraj, one of the plaintiffs, was seriously ill and the other two plaintiffs who were his sons could not come in view of his serious condition. THE application was considered by the court and it pointed out that the counsel was not authorised to make that application as he did not hold a vakalat-nama from the plaintiffs. THE court further held that sufficient cause was not shown why the plaintiffs had not summoned evidence. It, therefore, dismissed the application for adjournment and went on to say that the defendant also did not want to produce any evidence and that as the burden of proof of all the issues was on the plaintiffs and they had failed to discharge it, the suit was dismissed with costs THE decree was accordingly prepared and the decree specifically says that the suit was dismissed under Order XVII, rule 3 of the Code of Civil Procedure. THE present appeal is against this decree.

(3.) WE, therefore, allow the appeal, set aside the decree of the court below and send the case back for retrial on the merits. WE further order that the plaintiffs should pay to the defendant the sum of Rs. 250/- within two months of to-day. If they fail to do so, the appeal will stand dismissed and the suit will also remain dismissed. So far as the costs of this appeal are concerned, we order parties to bear their own costs. .