SOHANLAL Vs. DEVACHAND

JUDGEMENT

(1.) THIS is a revision by the defendants Sohanlal and Laohchand against an order of the Civil Judge, Ratangarh, restoring on payment of certain costs a suit which had been dismissed for default of the plaintiff's appearance

(2.) IT is unnecessary to set forth the pleadings of the parties for the purposes of this revision. Suffice it to say that the plaintiff opposite party brought a suit against the defendants petitioners, among other reliefs, for specific performance of an alleged oral contract of sale with respect to a portion of a house which was alleged to be ancestrah property but part of which had fallen to the shar of certain co-sharers therein and the latter had sold the same to the defendants. The suit was instituted on 31-5-1951. Issues were framed on 17-4-1952, and the case was posted for the plaintiff's evidence for 24-5-1952. On that date by mutual consent between counsel for the parties, the case was adjourned to 6-8-1952, and owing to an intermediate application filed by the plaintiff's counsel, the case was adjourned to 16-8- 1952. Meanwhile the plaintiff had filed a list of witnesses to be summoned through Court. Some of the plaintiff's witnesses were absent in spite of service on 16-8-1952, and so fresh summonses were directed to be issued against them and the case was adjourned to 8-9-1952. On 8-9-1952, some of the plaintiff's witnesses, namely. Mohanlal and Baijnath were present but counsel for both parties went away to attend to some case' in the Sub-Divisional Magistrate's Court, and the Court ordered that all the plaintiff's witnesses (and we are informed that they were forty-seven in number) be summoned together and the case be fixed from the 12th to 14th November, 1952, both days inclusive. It, however, transpired on the 12th November that the Civil Judge was otherwise pre-occupied and so the case was adjourned to 16-12-1952, and the witnesses who were present were directed to appear on the next date. The Civil Judge happened to be on leave on 16-12-1952, and so the case was adjourned and about half a dozen witnesses who were present were directed to be present on the next date which was 10-2-1953. On the last-mentioned date, certain witnesses were again present but the order-sheet shows that counsel for the plaintiff suggested that he would like to have all the witnesses examined together and so the case was again adjourned to 26-31953, and summonses were directed to be issued to all the witnesss who were not present on that date. We cannot help pointing out at this stage that this was an amazing state of affairs and displays a deplorable mismanagement of the case in the Court below. Witnesses who were present a number of times were sent away every time on some excuse or another and we are altogether unable to understand why witnesses who were present on a date of hearing were not examined but were sent away without being examined, and how the learned trial Judge or learned counsel for the plaintiff could think with any reason that forty seven witnesses could be examined on one day.

(3.) BE that as it may, on the next date, which was 26-3-1953, the plaintiff's counsel was absent and so was the plaintiff. It may be pointed out at this place that from the record of the proceedings it appears that the parties (on either side)were never present in Court and they were content to leave the case in the hands of counsel and it was the counsel on both sides who appear to have been put in almost entire charge of the case. It further appears that the order passed at the last hearing for summoning the plaintiff's witnesses was not carried out with the result that no witness of the plaintiff is said to have been present on the 26th March. Consequently, the Court dismissed the plaintiff's suit under Order 17, Rule 2 read with Order 9, Rule 8, Civil p. C.